Exhibit 4.3
Xxxxxxx Waste Systems, Inc.
9.75% Senior Subordinated Notes due 2013
unconditionally guaranteed as to the
payment of principal, premium,
if any, and interest by
the Guarantors listed on the signature pages hereof
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
February 2, 2004
Xxxxxxx, Xxxxx & Co.,
As Representative of the several Purchasers
named in Schedule I to the Purchase Agreement
c/x Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxxx Waste Systems, Inc., a Delaware corporation (the "COMPANY"),
proposes to issue and sell to the Purchasers (as defined herein) upon the terms
set forth in the Purchase Agreement (as defined herein) $45,000,000 aggregate
principal amount of its 9.75% Senior Subordinated Notes due 2013, which are
unconditionally guaranteed by the subsidiaries of the Company listed on the
signature pages hereof. As an inducement to the Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the obligations of the
Purchasers thereunder, the Company agrees with the Purchasers for the benefit of
holders (as defined herein) from time to time of the Registrable Securities (as
defined herein) as follows:
1. CERTAIN DEFINITIONS. For purposes of this Exchange and
Registration Rights Agreement, the following terms shall have the following
respective meanings:
The term "BROKER-DEALER" shall mean any broker or dealer registered
with the Commission under the Exchange Act.
"BLACKOUT PERIOD" shall have the meaning set forth in Section 2(c)
hereof.
"CLOSING DATE" shall mean the date on which the Securities are
initially issued.
"COMMISSION" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute for
the particular purpose.
"EFFECTIVE TIME," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement ef-
fective or as of which the Exchange Registration Statement otherwise
becomes effective and (ii) a Shelf Registration, shall mean the time and
date as of which the Commission declares the Shelf Registration
Statement effective or as of which the Shelf Registration Statement
otherwise becomes effective.
"ELECTING HOLDER" shall mean any holder of Registrable Securities that
has returned a completed and signed Notice and Questionnaire to the Company
in accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
"EXCHANGE OFFER" shall have the meaning assigned thereto in Section
2(a) hereof.
"EXCHANGE REGISTRATION" shall have the meaning assigned thereto in
Section 3(c) hereof.
"EXCHANGE REGISTRATION STATEMENT" shall have the meaning assigned
thereto in Section 2(a) hereof.
"EXCHANGE SECURITIES" shall have the meaning assigned thereto in
Section 2(a) hereof.
"GUARANTORS" shall have the meaning assigned thereto in the Indenture.
The term "HOLDER" shall mean each of the Purchasers and other persons
who acquire Registrable Securities from time to time (including any
successors or assigns), in each case for so long as such person owns any
Registrable Securities.
"INDENTURE" shall mean the Indenture, dated as of January 24, 2003,
between the Company, the Guarantors and U.S. Bank National Association, as
Trustee, as the same shall be amended from time to time.
"LIQUIDATED DAMAGES" shall have the meaning assigned thereto in
Section 2(d) hereof.
"NOTICE AND QUESTIONNAIRE" means a Notice of Registration Statement
and Selling Securityholder Questionnaire substantially in the form of
Exhibit A hereto.
The term "PERSON" shall mean a corporation, association, partnership,
organization, limited liability company, business, individual, government
or political subdivision thereof or governmental agency.
"PURCHASE AGREEMENT" shall mean the Purchase Agreement, dated as of
January 22, 2004, among the Purchasers, the Guarantors and the Company
relating to the Securities.
"PURCHASERS" shall mean the Purchasers named in Schedule I to the
Purchase Agreement.
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"REGISTRABLE SECURITIES" shall mean the Securities; provided, however,
that a Security shall cease to be a Registrable Security when (i) in the
circumstances contemplated by Section 2(a) hereof, the Security has been
exchanged for an Exchange Security in an Exchange Offer as contemplated in
Section 2(a) hereof (provided that any Exchange Security that, pursuant to
the last two sentences of Section 2(a), is included in a prospectus for use
in connection with resales by broker-dealers shall be deemed to be a
Registrable Security with respect to Sections 5, 6 and 9 until resale of
such Registrable Security has been effected within the 180-day period
referred to in Section 2(a)); (ii) in the circumstances contemplated by
Section 2(b) hereof, a Shelf Registration Statement registering such
Security under the Securities Act has been declared or becomes effective
and such Security has been sold or otherwise transferred by the holder
thereof pursuant to and in a manner contemplated by such effective Shelf
Registration Statement; (iii) such Security is sold pursuant to Rule 144
under circumstances in which any legend borne by such Security relating to
restrictions on transferability thereof, under the Securities Act or
otherwise, is removed by the Company or pursuant to the Indenture; (iv)
such Security is eligible to be sold pursuant to paragraph (k) of Rule144;
or (v) such Security shall cease to be outstanding.
"REGISTRATION DEFAULT" shall have the meaning assigned thereto in
Section 2(d) hereof.
"REGISTRATION EXPENSES" shall have the meaning assigned thereto in
Section 4 hereof.
"RESALE PERIOD" shall have the meaning assigned thereto in Section
2(a) hereof.
"RESTRICTED HOLDER" shall mean (i) a holder that is an affiliate of
the Company within the meaning of Rule 405, (ii) a holder who acquires
Exchange Securities outside the ordinary course of such holder's business,
(iii) a holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing Exchange
Securities and (iv) a holder that is a broker-dealer, but only with respect
to Exchange Securities received by such broker-dealer pursuant to an
Exchange Offer in exchange for Registrable Securities acquired by the
broker-dealer directly from the Company.
"RULE 144," "RULE 405" and "RULE 415" shall mean, in each case, such
rule promulgated under the Securities Act (or any successor provision), as
the same shall be amended from time to time.
"SECURITIES" shall mean, collectively, the 9.75% Senior Subordinated
Notes due 2013 of the Company to be issued and sold to the Purchasers
pursuant to the Purchase Agreement, and securities issued in exchange
therefor or in lieu thereof pursuant to the Indenture. Each Security is
entitled to the benefit of the guarantees provided for in the Indenture
(the "GUARANTEES") and, unless the context otherwise requires, any
reference herein to a "SECURITY," an "EXCHANGE SECURITY" or a "REGISTRABLE
SECURITY" shall include a reference to the related Guarantees.
"SECURITIES ACT" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
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"SHELF REGISTRATION" shall have the meaning assigned thereto in
Section 2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall have the meaning assigned thereto
in Section 2(b) hereof.
"TRUST INDENTURE ACT" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) Except as set forth in Section 2(b) below, the Company and the
Guarantors agree to file under the Securities Act, as soon as practicable, but
no later than 90 days after the Closing Date, a registration statement relating
to an offer to exchange (such registration statement, the "EXCHANGE REGISTRATION
STATEMENT", and such offer, the "EXCHANGE OFFER") any and all of the Securities
for a like aggregate principal amount of debt securities issued by the Company
and guaranteed by the Guarantors, which debt securities and guarantees are
substantially identical to the Securities and the related Guarantees,
respectively (and are entitled to the benefits of a trust indenture which is
substantially identical to the Indenture or is the Indenture and which has been
qualified under the Trust Indenture Act), except that they have been registered
pursuant to an effective registration statement under the Securities Act and do
not contain provisions for the liquidated damages contemplated in Section 2(d)
below (such new debt securities hereinafter called "EXCHANGE SECURITIES"). The
Company agrees to use its reasonable best efforts to cause the Exchange
Registration Statement to become effective under the Securities Act as soon as
practicable, but no later than 180 days after the Closing Date. The Company
agrees that it shall cause the Exchange Offer to be registered under the
Securities Act on the appropriate form and to comply with all applicable tender
offer rules and regulations under the Exchange Act. The Company further agrees
to use its best efforts to commence and complete the Exchange Offer promptly,
but no later than 45 days after such registration statement has become
effective, hold the Exchange Offer open for at least 30 days and exchange
Exchange Securities for all Registrable Securities that have been properly
tendered and not withdrawn on or prior to the expiration of the Exchange Offer.
The Exchange Offer will be deemed to have been "completed" only if the debt
securities and related guarantees received by holders other than Restricted
Holders in the Exchange Offer for Registrable Securities are, upon receipt,
transferable by each such holder without need for further compliance with
Section 5 of the Securities Act (except for the requirement to deliver a
prospectus included in the Exchange Registration Statement applicable to resales
by broker-dealers of Exchange Securities received by such broker-dealer pursuant
to an Exchange Offer in exchange for Registrable Securities other than those
acquired by the broker-dealer directly from the Company) and without material
restrictions under the blue sky or securities laws of a substantial majority of
the States of the United States of America. The Exchange Offer shall be deemed
to have been completed upon the earlier to occur of (i) the Company having
exchanged the Exchange Securities for all outstanding Registrable Securities
pursuant to the Exchange Offer and (ii) the Company having
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exchanged, pursuant to the Exchange Offer, Exchange Securities for all
Registrable Securities that have been properly tendered and not withdrawn before
the expiration of the Exchange Offer, which shall be on a date that is at least
30 days following the commencement of the Exchange Offer. The Company agrees (x)
to include in the Exchange Registration Statement a prospectus for use in any
resales by any holder of Exchange Securities that is a broker-dealer (where such
Exchange Security was received by a broker-dealer in an Exchange Offer in
exchange for a Registrable Security that was acquired by such broker-dealer for
its own account as a result of market-making or other trading activities, so
long as such Registrable Security was not acquired directly from the Company or
an affiliate of the Company) and (y) to keep such Exchange Registration
Statement effective for a period (the "RESALE PERIOD") beginning when Exchange
Securities are first issued in the Exchange Offer and ending upon the earlier of
the expiration of the 180th day after the Exchange Offer has been completed or
such time as such broker-dealers no longer own any Registrable Securities. With
respect to such Exchange Registration Statement, such holders shall have the
benefit of the rights of indemnification and contribution set forth in Sections
6(a), (c), (d) and (e) hereof.
(b) If (i) on or prior to the time the Exchange Offer is completed
existing Commission interpretations are changed such that the debt securities or
the related guarantees received by holders other than Restricted Holders in the
Exchange Offer for Registrable Securities are not or would not be, upon receipt,
transferable by each such holder without need for further compliance with
Section 5 of the Securities Act (except for the requirement to deliver a
prospectus included in the Exchange Registration Statement applicable to resales
by broker-dealers of Exchange Securities received by such broker-dealer pursuant
to an Exchange Offer in exchange for Registrable Securities other than those
acquired by the broker-dealer directly from the Company), (ii) the Exchange
Offer has not been completed within 210 days following the Closing Date or (iii)
the Exchange Offer is not available to any holder of the Securities and such
holder notifies the Company in writing prior to the 210th day following the
Closing Date (A) that it is prohibited by law or Commission policy from
participating in the Exchange Offer, (B) that it may not resell the Exchange
Securities 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 or (C) that it is a
broker-dealer and owns Registrable Securities acquired directly from the Company
or an affiliate of the Company, the Company shall, in lieu of (or, in the case
of clause (iii), in addition to) conducting the Exchange Offer contemplated by
Section 2(a), file under the Securities Act as soon as practicable, but no later
than 60 days after the time such obligation to file arises, a "shelf"
registration statement providing for the registration of, and the sale on a
continuous or delayed basis by the holders of, all of the Registrable
Securities, pursuant to Rule 415 or any similar rule that may be adopted by the
Commission (such filing, the "SHELF REGISTRATION" and such registration
statement, the "SHELF REGISTRATION STATEMENT"). The Company agrees to use its
reasonable best efforts (x) to cause the Shelf Registration Statement to become
or be declared effective no later than 120 days after such Shelf Registration
Statement is filed and to keep such Shelf Registration Statement continuously
effective for a period ending on the earlier of the second anniversary of the
Effective Time or such time as there are no longer any Registrable Securities
outstanding, provided, however, that no holder shall be entitled to be named as
a selling securityholder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable Securities unless
such holder is an Electing Holder who agrees to be bound by all of the
provisions of this Agreement applicable to such holder, and (y) after the
Effective Time of the Shelf Registration Statement, promptly upon the request of
any holder of Registrable Securities that is not then an Electing Holder, to
take any action reasonably necessary to enable such holder to use the prospectus
forming a part thereof for resales of Registra-
5
ble Securities, including, without limitation, any action necessary to
identify such holder as a selling securityholder in the Shelf Registration
Statement, provided, however, that nothing in this Clause (y) shall relieve
any such holder of the obligation to return a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(d)(iii) hereof. The
Company further agrees to supplement or make amendments to the Shelf
Registration Statement, as and when required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or rules and
regulations thereunder for shelf registration, and the Company agrees to
furnish to each Electing Holder copies of any such supplement or amendment
prior to its being used or promptly following its filing with the Commission.
(c) Notwithstanding the foregoing, the Company, upon advising the
Purchasers in writing, may, pursuant to the advice of outside counsel to the
Company, delay the filing or effectiveness of any Exchange Registration
Statement or Shelf Registration Statement (if not then filed or effective, as
applicable) or suspend, or otherwise fail to maintain, the effectiveness
thereof, for a period (the "BLACKOUT PERIOD") not to exceed an aggregate of 60
days in any twelve consecutive month period in the event that (1) the Board of
Directors of the Company reasonably and in good faith determines that the
premature disclosure of a material event at such time would have a material
adverse effect on the Company's business, operations or prospects or (2) the
disclosure otherwise relates to a material business transaction which has not
been publicly disclosed and the Board of Directors of the Company reasonably and
in good faith determines that any such disclosure would jeopardize the success
of such transaction; PROVIDED, that, upon the termination of such Blackout
Period, the Company promptly shall advise the Purchasers that such Blackout
Period has been terminated.
(d) In the event that (i) the Company has not filed the Exchange
Registration Statement or Shelf Registration Statement on or before the date on
which such registration statement is required to be filed pursuant to Section
2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or
Shelf Registration Statement has not become effective or been declared effective
by the Commission within 180 days after the Closing Date (in the case of Section
2(a)) or 120 days after the Shelf Registration Statement is filed (in the case
of Section 2(b)), or (iii) the Exchange Offer has not been completed within 45
days after the initial effective date of the Exchange Registration Statement
relating to the Exchange Offer (if the Exchange Offer is then required to be
made) or (iv) any Exchange Registration Statement or Shelf Registration
Statement required by Section 2(a) or 2(b) hereof is filed and declared
effective but shall thereafter, prior to the time such Exchange Registration
Statement or Shelf Registration Statement is no longer required to be effective
pursuant to Section 2(a) or 2(b), either be withdrawn by the Company or shall
become subject to an effective stop order issued pursuant to Section 8(d) of the
Securities Act suspending the effectiveness of such registration statement
(except during a Blackout Period permitted by this Agreement) without being
succeeded immediately by an additional registration statement filed and declared
effective (each such event referred to in clauses (i) through (iv), a
"REGISTRATION DEFAULT" and each period during which a Registration Default has
occurred and is continuing, a "REGISTRATION DEFAULT PERIOD"), then the Company
shall pay to the holders liquidated damages for such Registration Default,
subject to the provisions of Section 9(b) ("LIQUIDATED DAMAGES"). Liquidated
Damages shall accrue at a per annum rate of 0.50% of the principal amount of
Registrable Securities for the first 90 days of the Registration Default Period,
at a per annum rate of 1.00% of the principal amount of Registrable Securities
for the second 90 days of the Registration Default Period, at a per annum rate
of 1.50% of the principal amount of Registrable Securities for the third 90 days
of the Registration Default Period and at a per annum rate of 2.00% of the
principal amount of Registrable Securi-
6
ties thereafter for the remaining portion of the Registration Default Period,
such Registration Default Period ending on the earlier of (x) the date on
which all Registration Defaults have been cured and (y) the date on which all
the Securities otherwise become freely transferable by all holders of the
Securities other than affiliates of the Company or the Guarantors without
further registration under the Securities Act. Notwithstanding the forgoing,
(A) the amount of Liquidated Damages payable shall not increase solely
because more than one Registration Default has occurred and (B) for so long
as a holder of Registrable Securities is not an Electing Holder, such holder
shall not be entitled to Liquidated Damages with respect to a Registration
Default that pertains to a Shelf Registration Statement.
(e) The Company and the Guarantors shall take all actions necessary
or advisable to be taken by them to ensure that the transactions contemplated
herein are effected as so contemplated, including all actions reasonably
necessary or desirable to register the Guarantees, under the registration
statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference herein to
any post-effective amendment to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time.
3. REGISTRATION PROCEDURES. If the Company files a registration
statement pursuant to Section 2(a) or Section 2(b) hereof, the following
provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the
Shelf Registration, as the case may be, the Company shall qualify the
Indenture under the Trust Indenture Act.
(b) In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall appoint
a new trustee thereunder pursuant to the applicable provisions of the
Indenture.
(c) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"EXCHANGE REGISTRATION"), if applicable, the Company shall, as soon as
practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but no later than 90 days after the Closing Date, an
Exchange Registration Statement on any appropriate form under the
Securities Act which may be utilized by the Company and which shall
permit the Exchange Offer and resales of Exchange Securities by
broker-dealers during the Resale Period to be effected as contemplated
by Section 2(a), and use its reasonable best efforts to cause such
Exchange Registration Statement to become effective as soon as
practicable thereafter, but no later than 180 days after the Closing
Date;
(ii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Exchange
Registration Statement and the prospectus included therein as may be
reasonably necessary to effect and maintain the effectiveness of such
Exchange Registration Statement for the periods
7
and purposes contemplated in Section 2(a) hereof and as may be
required by the applicable rules and regulations of the Commission and
the instructions applicable to the form of such Exchange Registration
Statement, and promptly provide each broker-dealer holding Exchange
Securities with such number of copies of the prospectus included
therein (as then amended or supplemented), in conformity in all
material respects with the requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder, as such broker-dealer reasonably may request prior to the
expiration of the Resale Period, for use in connection with resales of
Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration
statement, and confirm such advice in writing, (A) when such Exchange
Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has
been filed, and, with respect to such Exchange Registration Statement
or any post-effective amendment, when the same has become effective,
(B) of any comments by the Commission and by the blue sky or
securities commissioner or regulator of any state with respect thereto
or any request by the Commission for amendments or supplements to such
Exchange Registration Statement or prospectus or for additional
information, (C) of the receipt by the Company of notification of the
issuance by the Commission of any stop order suspending the
effectiveness of such Exchange Registration Statement or the
initiation or threatening of any proceedings for that purpose, (D) if
at any time the representations and warranties of the Company
contemplated by Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Exchange
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (F) at any time
during the Resale Period when a prospectus is required to be delivered
under the Securities Act, that such Exchange Registration Statement,
prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder or contains an
untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(iv) in the event that the Company would be required, pursuant
to Section 3(c)(iii)(F) above, to notify any broker-dealers holding
Exchange Securities, without delay prepare and furnish to each such
holder a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of such
Exchange Securities during the Resale Period, such prospectus shall
conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and shall 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 not misleading in light of the circumstances then existing;
8
(v) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of such Exchange
Registration Statement or any post-effective amendment thereto at the
earliest practicable date;
(vi) (A) register or qualify the Exchange Securities under the
securities laws or blue sky laws of such jurisdictions as are
contemplated by Section 2(a) no later than the commencement of the
Exchange Offer, (B) keep such registrations or qualifications in
effect and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions until the
expiration of the Resale Period and (C) take any and all other actions
as may be reasonably necessary or advisable to enable each
broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions; provided, however, that
neither the Company nor the Guarantors shall be required for any such
purpose to (1) qualify as a foreign corporation in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(c)(vi), (2) be subject to general
service of process or to taxation in any such jurisdiction or (3) make
any changes to its certificate of incorporation or by-laws or any
agreement between it and its stockholders;
(vii) obtain the consent or approval of each governmental
agency or authority, whether federal, state or local, which may be
required to effect the Exchange Registration, the Exchange Offer and
the offering and sale of Exchange Securities by broker-dealers during
the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time;
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as
soon as practicable but no later than eighteen months after the
effective date of such Exchange Registration Statement, an earning
statement of the Company and its subsidiaries complying with Section
11(a) of the Securities Act (including, at the option of the Company,
Rule 158 thereunder).
(d) In connection with the Company's obligations with respect to the
Shelf Registration, if applicable, the Company shall, as soon as
practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but in any case within the time periods specified in
Section 2(b), a Shelf Registration Statement on any appropriate form
under the Securities Act which may be utilized by the Company and
which shall register all of the Registrable Securities for resale by
the holders thereof in accordance with such method or methods of
disposition as may be specified by such of the holders as, from time
to time, may be Electing Holders and use its reasonable best efforts
to cause such Shelf Registration Statement to become effective as soon
as practicable but in any case within the time periods specified in
Section 2(b);
(ii) not less than 30 calendar days prior to the Effective
Time of the Shelf Registration Statement, mail the Notice and
Questionnaire to the holders of Registrable Securities; no holder
shall be entitled to be named as a selling secu-
9
rityholder in the Shelf Registration Statement as of the Effective
Time, and no holder shall be entitled to use the prospectus forming
a part thereof for resales of Registrable Securities at any time,
unless such holder has returned a completed and signed Notice and
Questionnaire to the Company by the deadline for response set forth
therein; provided, however, holders of Registrable Securities shall
have at least 28 calendar days from the date on which the Notice
and Questionnaire is first mailed to such holders to return a
completed and signed Notice and Questionnaire to the Company;
(iii) after the Effective Time of the Shelf Registration
Statement, upon the request of any holder of Registrable Securities
that is not then an Electing Holder, promptly send a Notice and
Questionnaire to such holder; provided that the Company shall not be
required to take any action to name such holder as a selling
securityholder in the Shelf Registration Statement or to enable such
holder to use the prospectus forming a part thereof for resales of
Registrable Securities until such holder has returned a completed and
signed Notice and Questionnaire to the Company;
(iv) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Shelf Registration
Statement and the prospectus included therein as may be necessary to
effect and maintain the effectiveness of such Shelf Registration
Statement for the period specified in Section 2(b) hereof and as may
be required by the applicable rules and regulations of the Commission
and the instructions applicable to the form of such Shelf Registration
Statement, and furnish to the Electing Holders copies of any such
supplement or amendment simultaneously with or prior to its being used
or filed with the Commission;
(v) comply with the provisions of the Securities Act with
respect to the disposition of all of the Registrable Securities
covered by such Shelf Registration Statement in accordance with the
intended methods of disposition by the Electing Holders provided for
in such Shelf Registration Statement;
(vi) provide (A) the Electing Holders, (B) the underwriters
(which term, for purposes of this Exchange and Registration Rights
Agreement, shall include a person deemed to be an underwriter within
the meaning of Section 2(a)(11) of the Securities Act), if any,
thereof, (C) any sales or placement agent therefor, (D) counsel for
any such underwriter or agent and (E) not more than one counsel for
all the Electing Holders the opportunity to participate in the
preparation of such Shelf Registration Statement, each prospectus
included therein or filed with the Commission and each amendment or
supplement thereto;
(vii) for a reasonable period prior to the filing of such Shelf
Registration Statement, and throughout the period specified in Section
2(b), make available at reasonable times at the Company's principal
place of business or such other reasonable place for inspection by the
persons referred to in Section 3(d)(vi) such financial and other
information and books and records of the Company, and cause the
officers, employees, counsel and independent certified public
accountants of the Company to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel
referred to in such Section, to conduct a
10
reasonable investigation within the meaning of Section 11 of the
Securities Act; PROVIDED, however, that each such party shall be
required to maintain in confidence and not to disclose to any other
person any information or records reasonably designated by the Company
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 a 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 Shelf Registration Statement or the
prospectus included therein or in an amendment to such Shelf
Registration Statement or an amendment or supplement to such
prospectus in order that such Shelf Registration Statement,
prospectus, amendment or supplement, as the case may be, complies with
applicable requirements of the federal securities laws and the rules
and regulations of the Commission and 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
therein not misleading in light of the circumstances then existing,
and PROVIDED, FURTHER, that the Company shall not be deemed to be in
violation of this Section 3(d)(vii) should such counsel fail to so
respond to such inquiries due to its reasonable good faith belief that
such response would violate an attorney-client privilege;
(viii) promptly notify each of the Electing Holders, any sales
or placement agent therefor and any underwriter thereof (which
notification may be made through any managing underwriter that is a
representative of such underwriter for such purpose) and confirm such
advice in writing, (A) when such Shelf Registration Statement or the
prospectus included therein or any prospectus amendment or supplement
or post-effective amendment has been filed, and, with respect to such
Shelf Registration Statement or any post-effective amendment, when the
same has become effective, (B) of any comments by the Commission and
by the blue sky or securities commissioner or regulator of any state
with respect thereto or any request by the Commission for amendments
or supplements to such Shelf Registration Statement or prospectus or
for additional information, (C) of the receipt by the Company of
notification of the issuance by the Commission of any stop order
suspending the effectiveness of such Shelf Registration Statement or
the initiation or threatening of any proceedings for that purpose, (D)
if at any time the representations and warranties of the Company
contemplated by Section 3(d)(xvii) or Section 5 cease to be true and
correct in all material respects, (E) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, or (F)
if at any time when a prospectus is required to be delivered under the
Securities Act, that such Shelf Registration Statement, prospectus,
prospectus amendment or supplement or post-effective amendment does
not conform in all material respects to the applicable requirements of
the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or contains an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
11
(ix) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of such Shelf Registration
Statement or any post-effective amendment thereto at the earliest
practicable date;
(x) if requested by any managing underwriter or underwriters,
any placement or sales agent or any Electing Holder, promptly
incorporate in a prospectus supplement or post-effective amendment
such information as is required by the applicable rules and
regulations of the Commission and as such managing underwriter or
underwriters, such agent or such Electing Holder specifies should be
included therein relating to the terms of the sale of such Registrable
Securities, including information with respect to the principal amount
of Registrable Securities being sold by such Electing Holder or agent
or to any underwriters, the name and description of such Electing
Holder, agent or underwriter, the offering price of such Registrable
Securities and any discount, commission or other compensation payable
in respect thereof, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the offering of
the Registrable Securities to be sold by such Electing Holder or agent
or to such underwriters; and make all required filings of such
prospectus supplement or post-effective amendment promptly after
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment;
(xi) furnish to each Electing Holder, each placement or sales
agent, if any, therefor, each underwriter, if any, thereof and the
respective counsel referred to in Section 3(d)(vi) an executed copy
(or, in the case of an Electing Holder, a conformed copy) of such
Shelf Registration Statement, each such amendment and supplement
thereto (in each case including all exhibits thereto (in the case of
an Electing Holder of Registrable Securities, upon request) and
documents incorporated by reference therein) and such number of copies
of such Shelf Registration Statement (excluding exhibits thereto and
documents incorporated by reference therein unless specifically so
requested by such Electing Holder, agent or underwriter, as the case
may be) and of the prospectus included in such Shelf Registration
Statement (including each preliminary prospectus and any summary
prospectus), in conformity in all material respects with the
applicable requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder, and
such other documents, as such Electing Holder, agent, if any, and
underwriter, if any, may reasonably request in order to facilitate the
offering and disposition of the Registrable Securities owned by such
Electing Holder, offered or sold by such agent or underwritten by such
underwriter and to permit such Electing Holder, agent and underwriter
to satisfy the prospectus delivery requirements of the Securities Act;
and the Company hereby consents to the use of such prospectus
(including such preliminary and summary prospectus) and any amendment
or supplement thereto by each such Electing Holder and by any such
agent and underwriter, in each case in the form most recently provided
to such person by the Company, in connection with the offering and
sale of the Registrable Securities covered by the prospectus
(including such preliminary and summary prospectus) or any supplement
or amendment thereto;
(xii) (A) register or qualify the Registrable Securities to be
included in such Shelf Registration Statement under such securities
laws or blue sky laws of
12
such jurisdictions as any Electing Holder and each placement or sales
agent, if any, therefor and underwriter, if any, thereof shall
reasonably request, (B) keep such registrations or qualifications in
effect and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions during the
period the Shelf Registration is required to remain effective under
Section 2(b) above and for so long as may be necessary to enable any
such Electing Holder, agent or underwriter to complete its
distribution of Securities pursuant to such Shelf Registration
Statement and (C) take any and all other actions as may be reasonably
necessary or advisable to enable each such Electing Holder, agent, if
any, and underwriter, if any, to consummate the disposition in such
jurisdictions of such Registrable Securities; provided, however, that
neither the Company nor the Guarantors shall be required for any such
purpose to (1) qualify as a foreign corporation in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(d)(xii), (2) be subject to general
service of process or taxation in any such jurisdiction or (3) make
any changes to its certificate of incorporation or by-laws or any
agreement between it and its stockholders;
(xiii) obtain the consent or approval of each governmental
agency or authority, whether federal, state or local, which may be
required to effect the Shelf Registration or the offering or sale in
connection therewith or to enable the selling holder or holders to
offer, or to consummate the disposition of, their Registrable
Securities;
(xiv) unless any Registrable Securities shall be in book-entry
only form, cooperate with the Electing Holders and the managing
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be
sold, which certificates, if so required by any securities exchange
upon which any Registrable Securities are listed, shall be penned,
lithographed or engraved, or produced by any combination of such
methods, on steel engraved borders, and which certificates shall not
bear any restrictive legends; and, in the case of an underwritten
offering, enable such Registrable Securities to be in such
denominations and registered in such names as the managing
underwriters may request at least three business days prior to any
sale of the Registrable Securities;
(xv) provide a CUSIP number for all Registrable Securities,
not later than the applicable Effective Time;
(xvi) enter into such customary agreements, including if
requested, an underwriting agreement in customary form, and take such
other actions in connection therewith as any Electing Holders
aggregating at least 20% in aggregate principal amount of the
Registrable Securities at the time outstanding shall request in order
to expedite or facilitate the disposition of such Registrable
Securities, PROVIDED that the Company shall not be required to enter
into any such agreement more than two times with respect to all the
Registrable Securities;
(xvii) whether or not an agreement of the type referred to in
Section 3(d)(xvi) hereof is entered into and whether or not any
portion of the offering contemplated by the Shelf Registration is an
underwritten offering or is made through
13
a placement or sales agent or any other entity, (A) make such
representations and warranties to the Electing Holders and the
placement or sales agent, if any, therefor and the underwriters, if
any, thereof in form, substance and scope as are customarily made in
connection with an offering of debt securities pursuant to any
appropriate agreement or to a registration statement filed on the form
applicable to the Shelf Registration; (B) obtain an opinion of counsel
to the Company covering such matters, as are customarily covered by
such an opinion, as the managing underwriters, if any, or as any
Electing Holders of at least 20% in aggregate principal amount of the
Registrable Securities at the time outstanding may reasonably request,
addressed to such Electing Holder or Electing Holders and the
placement or sales agent, if any, therefor and the underwriters, if
any, thereof and dated the effective date of such Shelf Registration
Statement (and if such Shelf Registration Statement contemplates an
underwritten offering of a part or all of the Registrable Securities,
dated the date of the closing under the underwriting agreement
relating thereto); (C) obtain a "cold comfort" letter or letters from
the independent certified public accountants of the Company addressed
to the selling Electing Holders, the placement or sales agent, if any,
therefor or the underwriters, if any, thereof, dated (i) the effective
date of such Shelf Registration Statement and (ii) the effective date
of any prospectus supplement to the prospectus included in such Shelf
Registration Statement or post-effective amendment to such Shelf
Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the
latest such statements included in such prospectus (and, if such Shelf
Registration Statement contemplates an underwritten offering pursuant
to any prospectus supplement to the prospectus included in such Shelf
Registration Statement or post-effective amendment to such Shelf
Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the
latest such statements included in such prospectus, dated the date of
the closing under the underwriting agreement relating thereto), such
letter or letters to be in customary form and covering such matters of
the type customarily covered by letters of such type; PROVIDED that if
at such time it is the general policy of the Company's independent
certified public accountants not to provide "cold comfort" with
respect to financial data contained in or derived from financial
statements audited by Xxxxxx Xxxxxxxx LLP, then such "cold comfort"
letter need not relate to any financial data contained in or derived
from the Company's financial statements at, or for the fiscal years
ended, April 30, 2000 or 2001, as applicable, or any interim period
within such fiscal years; (D) deliver such customary documents and
certificates, including officers' certificates, as may be reasonably
requested by any Electing Holders of at least 20% in aggregate
principal amount of the Registrable Securities at the time outstanding
or the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof to evidence the accuracy of the
representations and warranties made pursuant to clause (A) above or
those contained in Section 5(a) hereof and the compliance with or
satisfaction of any agreements or conditions contained in the
underwriting agreement or other agreement entered into by the Company
or the Guarantors; and (E) undertake such obligations relating to
expense reimbursement, indemnification and contribution as are
provided in Section 6 hereof;
14
(xviii) notify in writing each holder of Registrable Securities
of any proposal by the Company to amend or waive any provision of this
Exchange and Registration Rights Agreement pursuant to Section 9(h)
hereof and of any amendment or waiver effected pursuant thereto, each
of which notices shall contain the text of the amendment or waiver
proposed or effected, as the case may be;
(xix) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or
participate as a member of an underwriting syndicate or selling group
or "assist in the distribution" (within the meaning of the Conduct
Rules (the "CONDUCT RULES") of the National Association of Securities
Dealers, Inc. ("NASD") or any successor thereto, as amended from time
to time) thereof, whether as a holder of such Registrable Securities
or as an underwriter, a placement or sales agent or a broker or dealer
in respect thereof, or otherwise, assist such broker-dealer in
complying with the requirements of such Conduct Rules, including by
(A) if such Conduct Rules shall so require, engaging a "qualified
independent underwriter" (as defined in such Conduct Rules) to
participate in the preparation of the Shelf Registration Statement
relating to such Registrable Securities, to exercise usual standards
of due diligence in respect thereto and, if any portion of the
offering contemplated by such Shelf Registration Statement is an
underwritten offering or is made through a placement or sales agent,
to recommend the yield of such Registrable Securities, (B)
indemnifying any such qualified independent underwriter to the extent
of the indemnification of underwriters provided in Section 6 hereof
(or to such other customary extent as may be requested by such
underwriter), and (C) providing such information to such broker-dealer
as may be required in order for such broker-dealer to comply with the
requirements of the Conduct Rules; and
(xx) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as
soon as practicable but in any event not later than eighteen months
after the effective date of such Shelf Registration Statement, an
earning statement of the Company and its subsidiaries complying with
Section 11(a) of the Securities Act (including, at the option of the
Company, Rule 158 thereunder).
(e) In the event that the Company would be required, pursuant to
Section 3(d)(viii)(F) above, to notify the Electing Holders, the placement
or sales agent, if any, therefor and the managing underwriters, if any,
thereof, the Company shall without delay prepare and furnish to each of the
Electing Holders, to each placement or sales agent, if any, and to each
such underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Securities, such prospectus shall conform in all material
respects to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder
and shall 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 not misleading in light of the circumstances then
existing. Each Electing Holder agrees that upon receipt of any notice from
the Company pursuant to Section 3(d)(viii)(F) hereof, such Electing Holder
shall forthwith discontinue the disposition of Registrable Securities
pursuant to the Shelf Registration Statement applicable to such Registrable
Securities until such Electing Holder shall have received copies of
15
such amended or supplemented prospectus, and if so directed by the Company,
such Electing Holder shall deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in such
Electing Xxxxxx's possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its Notice
Questionnaire, the Company may require such Electing Holder to furnish to
the Company such additional information regarding such Electing Holder and
such Electing Holder's intended method of distribution of Registrable
Securities as may be required in order to comply with the Securities Act.
Each such Electing Holder agrees to notify the Company as promptly as
practicable of any inaccuracy or change in information previously furnished
by such Electing Holder to the Company or of the occurrence of any event in
either case as a result of which any prospectus relating to such Shelf
Registration contains or would contain an untrue statement of a material
fact regarding such Electing Holder or such Electing Holder's intended
method of disposition of such Registrable Securities or omits to state any
material fact regarding such Electing Holder or such Electing Holder's
intended method of disposition of such Registrable Securities required to
be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, 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 Electing Holder or the
disposition of such Registrable 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 in light
of the circumstances then existing.
(g) Until the expiration of two years after the Closing Date, the
Company will not, and will not permit any of its "affiliates" (as defined
in Rule 144) to, resell any of the Securities that have been reacquired by
any of them except pursuant to an effective registration statement under
the Securities Act.
4. REGISTRATION EXPENSES. The Company agrees to bear and to pay or
cause to be paid promptly all expenses incident to the Company's performance of
or compliance with this Exchange and Registration Rights Agreement, including
(a) all Commission and any NASD registration, filing and review fees and
expenses including fees and disbursements of counsel for the placement or sales
agent or underwriters in connection with such NASD (but not Commission)
registration, filing and review, (b) all fees and expenses in connection with
the qualification of the Securities for offering and sale under the State
securities and blue sky laws referred to in Section 3(d)(xii) hereof and
determination of their eligibility for investment under the laws of such
jurisdictions as any managing underwriters or the Electing Holders may
designate, including reasonable fees and disbursements of counsel for the
Electing Holders or underwriters in connection with such qualification and
determination, (c) all expenses relating to the preparation, printing,
production, distribution and reproduction of each registration statement
required to be filed hereunder, each prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the foregoing, the
expenses of preparing the Securities for delivery and the expenses of printing
or producing any underwriting agreements, agreements among underwriters, selling
agreements and blue sky or legal investment memoranda and all other documents in
connection with the offering, sale or delivery of Securities to be disposed of
(including certificates representing the Securities), (d) messenger, telephone
and delivery expenses relating to the offering, sale or delivery of Securities
and the
16
preparation of documents referred in clause (c) above, (e) fees and expenses of
the Trustee under the Indenture, any agent of the Trustee and any counsel for
the Trustee and of any collateral agent or custodian, (f) internal expenses
(including all salaries and expenses of the Company's officers and employees
performing legal or accounting duties), (g) fees, disbursements and expenses of
counsel and independent certified public accountants of the Company (including
the expenses of any opinions or "cold comfort" letters required by or incident
to such performance and compliance), (h) reasonable fees, disbursements and
expenses of any "qualified independent underwriter" engaged pursuant to Section
3(d)(xix) hereof, (i) reasonable fees, disbursements and expenses of one counsel
for the Electing Holders retained in connection with a Shelf Registration and
any additional local counsel, each as selected by the Electing Holders of at
least a majority in aggregate principal amount of the Registrable Securities
held by Electing Holders (which counsel shall be reasonably satisfactory to the
Company), (j) any fees charged by securities rating services for rating the
Securities, and (k) fees, expenses and disbursements of any other persons,
including special experts, retained by the Company in connection with such
registration (collectively, the "REGISTRATION EXPENSES"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of Registrable
Securities or any placement or sales agent therefor or underwriter thereof, the
Company shall reimburse such person for the full amount of the Registration
Expenses so incurred, assumed or paid promptly after receipt of a request
therefor. Notwithstanding the foregoing, the holders of the Registrable
Securities being registered shall pay all agency fees and commissions and
underwriting discounts and commissions attributable to the sale of such
Registrable Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other than
the counsel and experts specifically referred to above.
5. REPRESENTATIONS AND WARRANTIES. Each of the Company and the
Guarantors represents and warrants to, and agrees with, each Purchaser and each
of the holders from time to time of Registrable Securities that:
(a) Each registration statement covering Registrable Securities and
each prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(d) or Section 3(c) hereof and
any further amendments or supplements to any such registration statement or
prospectus, when it becomes effective or is filed with the Commission, as
the case may be, and, in the case of an underwritten offering of
Registrable Securities, at the time of the closing under the underwriting
agreement relating thereto, will conform in all material respects to the
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and 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
not misleading; and at all times subsequent to the Effective Time when a
prospectus would be required to be delivered under the Securities Act,
other than from (i) such time as a notice has been given to holders of
Registrable Securities pursuant to Section 3(d)(viii)(F) or Section
3(c)(iii)(F) hereof until (ii) such time as the Company furnishes an
amended or supplemented prospectus pursuant to Section 3(e) or Section
3(c)(iv) hereof, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished pursuant
to Section 3(d) or Section 3(c) hereof, as then amended or supplemented,
will conform in all material respects to the requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and 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 not misleading in the
light of the circum-
17
stances then existing; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by a holder of Registrable Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became effective or
are or were filed with the Commission, as the case may be, will conform or
conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and none of such documents will
contain or contained an untrue statement of a material fact or will omit or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by a holder of Registrable Securities expressly for
use therein.
(c) The compliance by each of the Company and the Guarantors with all
of the provisions of this Exchange and Registration Rights Agreement and
the consummation of the transactions herein contemplated will not (i)
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any
subsidiary of the Company is a party or by which the Company or any
subsidiary of the Company is bound or to which any of the property or
assets of the Company or any subsidiary of the Company is subject, nor will
such action result in any violation of the provisions of the certificate of
incorporation, as amended, by-laws, or other organizational documents of
the Company or any of the Guarantors or (ii) result in any violation of any
existing statute, order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any subsidiary of
the Company or any of their properties except, in the case of clauses (i)
and (ii) above, such breaches or violations which would not, individually
or in the aggregate, have a material adverse effect on the Securities or on
the current or future consolidated financial position, stockholder's equity
or results of operations of the Company and its subsidiaries or be
reasonably likely to prevent the Company or the Guarantors from performing
their respective obligations hereunder; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the consummation by
the Company and the Guarantors of the transactions contemplated by this
Exchange and Registration Rights Agreement, except the registration under
the Securities Act of the Securities, qualification of the Indenture under
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under State securities
or blue sky laws in connection with the offering and distribution of the
Securities.
(d) This Exchange and Registration Rights Agreement has been duly
authorized, executed and delivered by each of the Company and Guarantors.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY AND THE GUARANTORS. The Company
and the Guarantors, jointly and severally, will indemnify and hold harmless each
of the holders of Registrable Securities included in an Exchange Registration
Statement, each of the Electing
18
Holders of Registrable Securities included in a Shelf Registration Statement and
each person who participates as a placement or sales agent or as an underwriter
in any offering or sale of such Registrable Securities against any losses,
claims, damages or liabilities, joint or several, to which such holder, agent or
underwriter may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Exchange Registration Statement or Shelf
Registration Statement, as the case may be, under which such Registrable
Securities were registered under the Securities Act, or any preliminary, final
or summary prospectus contained therein or furnished by the Company to any such
holder, Electing Holder, agent or underwriter, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse such holder, such
Electing Holder, such agent and such underwriter for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that
neither the Company nor the Guarantors shall be liable to any such person in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, or
preliminary, final or summary prospectus, or amendment or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Company by such person expressly for use therein.
(b) INDEMNIFICATION BY THE HOLDERS AND ANY AGENTS AND UNDERWRITERS.
The Company may require, as a condition to including any Registrable Securities
in any registration statement filed pursuant to Section 2(b) hereof and to
entering into any underwriting agreement with respect thereto, that the Company
shall have received an undertaking reasonably satisfactory to it from the
Electing Holder of such Registrable Securities and from each underwriter named
in any such underwriting agreement, severally and not jointly, to (i) indemnify
and hold harmless the Company, the Guarantors and all other holders of
Registrable Securities, against any losses, claims, damages or liabilities to
which the Company, the Guarantors or such other holders of Registrable
Securities may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in such registration statement, or any preliminary,
final or summary prospectus contained therein or furnished by the Company to any
such Electing Holder, agent or underwriter, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Electing Holder or underwriter
expressly for use therein, and (ii) reimburse each of the Company and the
Guarantors for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that no such Electing Holder shall be
required to undertake liability to any person under this Section 6(b) for any
amounts in excess of the dollar amount of the proceeds to be received by such
Electing Holder from the sale of such Electing Holder's Registrable Securities
pursuant to such registration.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement of
any action, such in-
19
demnified party shall, if a claim in respect thereof is to be made against an
indemnifying party pursuant to the indemnification provisions of or
contemplated by this Section 6, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under the indemnification provisions
of or contemplated by Section 6(a) or 6(b) hereof. In case any such action
shall be brought against any indemnified party and it shall notify an
indemnifying party of the commencement thereof, such indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, such indemnifying party shall not be liable to such indemnified
party for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such
action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) CONTRIBUTION. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
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
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 6(d) were determined by
pro rata allocation (even if the holders or any agents or underwriters or all of
them 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 this Section 6(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds
received by such holder from the sale of any Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) exceeds the
amount of any damages which such holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter shall be required to contribute any amount in
20
excess of the amount by which the total price at which the Registrable
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such underwriter 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 holders' and any underwriters' obligations in this
Section 6(d) to contribute shall be several in proportion to the principal
amount of Registrable Securities registered or underwritten, as the case may be,
by them and not joint.
(e) The obligations of the Company and the Guarantors under this
Section 6 shall be in addition to any liability which the Company or the
Guarantors may otherwise have and shall extend, upon the same terms and
conditions, to each officer, director and partner of each holder, agent and
underwriter and each person, if any, who controls any holder, agent or
underwriter within the meaning of the Securities Act; and the obligations of the
holders and any agents or underwriters contemplated by this Section 6 shall be
in addition to any liability which the respective holder, agent or underwriter
may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company or the Guarantors (including any person who,
with his consent, is named in any registration statement as about to become a
director of the Company or the Guarantors) and to each person, if any, who
controls the Company within the meaning of the Securities Act.
7. UNDERWRITTEN OFFERINGS.
(a) SELECTION OF UNDERWRITERS. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be designated
by Electing Holders holding at least a majority in aggregate principal amount of
the Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are reasonably acceptable
to the Company.
(b) PARTICIPATION BY HOLDERS. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may participate in
any underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. RULE 144. The Company covenants to the holders of Registrable
Securities that to the extent it shall be required to do so under the Exchange
Act, the Company shall timely file the reports required to be filed by it under
the Exchange Act or the Securities Act (including the reports under Section 13
and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144
adopted by the Commission under the Securities Act) and the rules and
regulations adopted by the Commission thereunder, and shall take such further
action as any holder of Registrable Securities may reasonably request, all to
the extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitations
of the exemption provided by Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar or successor rule or regulation
hereafter adopted by the Commission. Upon the request of any holder of
Registrable Securities in con-
21
nection with that xxxxxx's sale pursuant to Rule 144, the Company shall
deliver to such holder a written statement as to whether it has complied with
such requirements.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant, registration
rights with respect to Registrable Securities or any other securities which
would be inconsistent with the terms contained in this Exchange and Registration
Rights Agreement.
(b) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there
would be no adequate remedy at law if any of the Company or the Guarantors fails
to perform any of its obligations hereunder and that the Purchasers and the
holders from time to time of the Registrable Securities may be irreparably
harmed by any such failure, and accordingly agree that the Purchasers and such
holders, in addition to any other remedy to which they may be entitled at law or
in equity, shall be entitled to compel specific performance of the obligations
of the Company and the Guarantors under this Exchange and Registration Rights
Agreement in accordance with the terms and conditions of this Exchange and
Registration Rights Agreement, in any court of the United States or any State
thereof having jurisdiction.
(c) NOTICES. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, if delivered personally or by courier,
or three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Company, to it
at 00 Xxxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxx 00000, and if to a holder, to the
address of such holder set forth in the security register or other records of
the Company, or to such other address as the Company or any such holder may have
furnished to the other in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
(d) PARTIES IN INTEREST. All the terms and provisions of this
Exchange and Registration Rights Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the parties hereto and the holders
from time to time of the Registrable Securities and the respective successors
and assigns of the parties hereto and such holders. In the event that any
transferee of any holder of Registrable Securities shall acquire Registrable
Securities, in any manner, whether by gift, bequest, purchase, operation of law
or otherwise, such transferee shall, without any further writing or action of
any kind, be deemed a beneficiary hereof for all purposes and such Registrable
Securities shall be held subject to all of the terms of this Exchange and
Registration Rights Agreement, and by taking and holding such Registrable
Securities such transferee shall be entitled to receive the benefits of, and be
conclusively deemed to have agreed to be bound by all of the applicable terms
and provisions of this Exchange and Registration Rights Agreement. If the
Company shall so request, any such successor, assign or transferee shall agree
in writing to acquire and hold the Registrable Securities subject to all of the
applicable terms hereof.
(e) SURVIVAL. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this Exchange
and Registration Rights Agreement or made pursuant hereto shall remain in full
force and effect regardless of any investigation (or statement as to the results
thereof) made by or on behalf of any holder of Registrable Securities, any
director, officer or partner of such holder, any agent or underwriter or any
director, officer or partner thereof, or any controlling person of any of the
foregoing, and shall survive deliv-
22
ery of and payment for the Registrable Securities pursuant to the Purchase
Agreement and the transfer and registration of Registrable Securities by such
holder and the consummation of an Exchange Offer.
(f) GOVERNING LAW. This Exchange and Registration Rights Agreement
shall be governed by and construed in accordance with the laws of the State of
New York.
(g) HEADINGS. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect in any way the meaning or interpretation
of this Exchange and Registration Rights Agreement.
(h) ENTIRE AGREEMENT; AMENDMENTS. This Exchange and Registration
Rights Agreement and the other writings referred to herein (including the
Purchase Agreement, the Indenture and the form of Securities) or delivered
pursuant hereto which form a part hereof contain the entire understanding of the
parties with respect to its subject matter. This Exchange and Registration
Rights Agreement supersedes all prior agreements and understandings among the
parties with respect to its subject matter. This Exchange and Registration
Rights Agreement may be amended and the observance of any term of this Exchange
and Registration Rights Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by a written
instrument duly executed by the Company and the holders of at least a majority
in aggregate principal amount of the Registrable Securities at the time
outstanding. Each holder of any Registrable Securities at the time or thereafter
outstanding shall be bound by any amendment or waiver effected pursuant to this
Section 9(h), whether or not any notice, writing or marking indicating such
amendment or waiver appears on such Registrable Securities or is delivered to
such holder.
(i) INSPECTION. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights Agreement
and a complete list of the names and addresses of all the holders of Registrable
Securities shall be made available for inspection and copying on any business
day by any holder of Registrable Securities for proper purposes only (which
shall include any purpose related to the rights of the holders of Registrable
Securities under the Securities, the Indenture and this Agreement) at the
offices of the Company at the address thereof set forth in Section 9(c) above
and at the office of the Trustee under the Indenture.
(j) COUNTERPARTS. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
23
If the foregoing is in accordance with your understanding, please sign
and return to us five counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Purchasers, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Purchasers, the
Guarantors and the Company. It is understood that your acceptance of this letter
on behalf of each of the Purchasers is pursuant to the authority set forth in a
form of Agreement among Purchasers, the form of which shall be submitted to the
Company for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
XXXXXXX WASTE SYSTEMS, INC.
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President,
Chief Financial Officer and Treasurer
24
Guarantors:
ALL CYCLE WASTE, INC.
ALTERNATE ENERGY, INC.
ATLANTIC COAST FIBERS, INC.
B. AND C. SANITATION CORPORATION
XXXXXXXX DEVELOPMENT GROUP, INC.
BRISTOL WASTE MANAGEMENT, INC.
C.V. LANDFILL, INC.
CASELLA TRANSPORTATION, INC.
XXXXXXX WASTE MANAGEMENT OF MASSACHUSETTS, INC.
XXXXXXX WASTE MANAGEMENT OF N.Y., INC.
XXXXXXX WASTE MANAGEMENT OF PENNSYLVANIA, INC.
XXXXXXX WASTE MANAGEMENT, INC.
DATA DESTRUCTION SERVICES, INC.
FAIRFIELD COUNTY RECYCLING, INC.
FCR CAMDEN, INC.
FCR FLORIDA, INC.
FCR GREENSBORO, INC.
FCR GREENVILLE, INC.
FCR XXXXXX, INC.
FCR REDEMPTION, INC.
FCR TENNESSEE, INC.
FCR, INC.
FOREST ACQUISITIONS, INC.
GRASSLANDS INC.
XXXXX C & D DISPOSAL, INC.
XXXXXXXX LANDFILL, INC.
XXXXX HOLLOW REGENERATION CORP.
K-C INTERNATIONAL, LTD.
KTI BIO FUELS, INC.
KTI ENVIRONMENTAL GROUP, INC.
KTI NEW JERSEY FIBERS, INC.
KTI OPERATIONS INC.
KTI RECYCLING OF NEW ENGLAND, INC.
KTI SPECIALTY WASTE SERVICES, INC.
KTI, INC.
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
25
MECKLENBURG COUNTY RECYCLING, INC.
NATURAL ENVIRONMENTAL, INC.
NEW ENGLAND WASTE SERVICES OF MASSACHUSETTS, INC.
NEW ENGLAND WASTE SERVICES OF ME, INC.
NEW ENGLAND WASTE SERVICES OF N.Y., INC.
NEW ENGLAND WASTE SERVICES OF VERMONT, INC.
NEW ENGLAND WASTE SERVICES, INC.
NEWBURY WASTE MANAGEMENT, INC.
NORTH COUNTRY ENVIRONMENTAL SERVICES, INC.
NORTHERN PROPERTIES CORPORATION OF PLATTSBURGH
NORTHERN SANITATION, INC.
PERC, INC.
PINE TREE WASTE, INC.
X.X. XXXXXXX INC.
RESOURCE RECOVERY OF CAPE COD, INC.
RESOURCE RECOVERY SYSTEMS OF SARASOTA, INC.
RESOURCE RECOVERY SYSTEMS, INC.
RESOURCE TRANSFER SERVICES, INC.
RESOURCE WASTE SYSTEMS, INC.
XXXXXXX LANDFILL, INC.
SUNDERLAND WASTE MANAGEMENT, INC.
U.S. FIBER, INC.
WASTE-STREAM INC.
WESTFIELD DISPOSAL SERVICE, INC.
XXXXXXX BROTHERS, INC.
WOOD RECYCLING, INC.
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
26
CASELLA NH INVESTORS CO., LLC
By: KTI, Inc., its sole member
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
CASELLA NH POWER CO., LLC
By: KTI, Inc., its sole member
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
CASELLA RTG INVESTORS CO., LLC
By: Xxxxxxx Waste Systems, Inc., its sole member
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President,
Chief Financial Officer and Treasurer
CWM ALL WASTE LLC
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Duly Authorized Agent
GROUNDCO LLC
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Duly Authorized Agent
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
27
THE XXXXXX FACILITY ASSOCIATES
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Duly Authorized Agent
NEWSME LANDFILL OPERATIONS LLC
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Duly Authorized Agent
ROCKINGHAM SAND & GRAVEL, LLC
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Duly Authorized Agent
XXXXXXXXX LANDFILL LLC
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Duly Authorized Agent
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
28
MAINE ENERGY RECOVERY COMPANY, LIMITED PARTNERSHIP
By: KTI Environmental Group, Inc., general partner
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
PERC MANAGEMENT COMPANY LIMITED PARTNERSHIP
By: PERC, Inc., general partner
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
ROCHESTER ENVIRONMENTAL PARK, LLC
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Duly Authorized Agent
29
Accepted as of the date hereof:
XXXXXXX, XXXXX & CO.
FLEET SECURITIES, INC.
BANC OF AMERICA SECURITIES LLC
ABN AMRO INCORPORATED
COMERICA SECURITIES, INC.
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ XXXXXXX, XXXXX & CO.
--------------------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Initial Purchasers
30
Exhibit A
Xxxxxxx Waste Systems, Inc.
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE](a)
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the Xxxxxxx Waste Systems, Inc. (the
"COMPANY") 9.75% Senior Subordinated Notes due 2013 (the "SECURITIES") are held.
The Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
IT IS IMPORTANT THAT BENEFICIAL OWNERS OF THE SECURITIES RECEIVE A COPY OF THE
ENCLOSED MATERIALS AS SOON AS POSSIBLE as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by [Deadline For Response]. Please forward a copy of the
enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact Xxxxxxx Waste
Systems, Inc., 00 Xxxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxx 00000, telephone (802)
000-0000, Attention: Xxxxxxx Xxxxxx.
----------
(a) Not less than 28 calendar days from date of mailing.
A-1
Xxxxxxx Waste Systems, Inc.
Notice of Registration Statement
and
SELLING SECURITYHOLDER QUESTIONNAIRE
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement,
dated as of February 2, 2004 (the "EXCHANGE AND REGISTRATION RIGHTS AGREEMENT"),
among Xxxxxxx Waste Systems, Inc. (the "COMPANY"), the Guarantors and the
Purchasers named therein. Pursuant to the Exchange and Registration Rights
Agreement, the Company has filed with the United States Securities and Exchange
Commission (the "COMMISSION") a registration statement on Form [__] (the "SHELF
REGISTRATION STATEMENT") for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the "SECURITIES ACT"), of the Company's
9.75% Senior Subordinated Notes due 2013 (the "SECURITIES"). A copy of the
Exchange and Registration Rights Agreement is attached hereto. All capitalized
terms not otherwise defined herein shall have the meanings ascribed thereto in
the Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled
to have the Registrable Securities beneficially owned by it included in the
Shelf Registration Statement. In order to have Registrable Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("NOTICE AND QUESTIONNAIRE") must be
completed, executed and delivered to the Company's counsel at the address set
forth herein for receipt ON OR BEFORE [Deadline for Response]. Beneficial owners
of Registrable Securities who do not complete, execute and return this Notice
and Questionnaire by such date (i) will not be named as selling securityholders
in the Shelf Registration Statement and (ii) may not use the Prospectus forming
a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
The term "REGISTRABLE SECURITIES" is defined in the Exchange and Registration
Rights Agreement.
A-2
ELECTION
The undersigned holder (the "SELLING SECURITYHOLDER") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Exchange and Registration Rights
Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and
as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
A-3
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as in (a) above)
of Registrable Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) Through Which Registrable Securities Listed in Item (3)
below are Held:
(2) Address for Notices to Selling Securityholder:
______________________________________
______________________________________
______________________________________
______________________________________
Telephone: ______________________________________
Fax: ______________________________________
Contact Person: ______________________________________
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned:________
CUSIP No(s). of such Registrable Securities:
______________________________________________________________________
(b) Principal amount of Securities other than Registrable Securities
beneficially owned:___________________________________________________
CUSIP No(s). of such other Securities:
______________________________________________________________________
(c) Principal amount of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration Statement:____________
CUSIP No(s). of such Registrable Securities to be included in the
Shelf Registration Statement:_________________________________________
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Securities listed above in
Item (3).
State any exceptions here:
A-4
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates) during
the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder intends
to distribute the Registrable Securities listed above in Item (3) only as
follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or, alternatively,
through underwriters, broker-dealers or agents. Such Registrable Securities
may be sold in one or more transactions at fixed prices, at prevailing
market prices at the time of sale, at varying prices determined at the time
of sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve crosses or block transactions) (i) on any
national securities exchange or quotation service on which the Registered
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv) through
the writing of options. In connection with sales of the Registrable
Securities or otherwise, the Selling Securityholder may enter into hedging
transactions with broker-dealers, which may in turn engage in short sales
of the Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable Securities
short and deliver Registrable Securities to close out such short positions,
or loan or pledge Registrable Securities to broker-dealers that in turn may
sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which may
A-5
occur subsequent to the date hereof at any time while the Shelf Registration
Statement remains in effect. All notices hereunder and pursuant to the Exchange
and Registration Rights Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
Xxxxxxx Waste Systems, Inc.
00 Xxxxxx Xxxx Xxxx,
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
(000) 000-0000
(ii) With a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
(000) 000-0000
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above). This
Agreement shall be governed in all respects by the laws of the State of New
York.
A-6
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated:_________________
-----------------------------------------------------
Selling Securityholder
(Print/type full legal name of beneficial owner of
Registrable Securities)
By:
------------------------------------------------
Name:
Title:
A-7
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
(000) 000-0000
A-8
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Xxxxxxx Waste Systems, Inc.
c/o U.S. Bank National Association
Corporate Trust Services
Xxxxxxx Square, 23rd Floor
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Services
Re: Xxxxxxx Waste Systems, Inc. (the "COMPANY")
9.75% Senior Subordinated Notes due 2013
Dear Sirs:
Please be advised that ______________ has transferred $____________ aggregate
principal amount of the above-referenced Notes pursuant to an effective
Registration Statement on Form [ ] (File No.333- ) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder" in the Prospectus
dated [date] or in supplements thereto, and that the aggregate principal amount
of the Notes transferred are the Notes listed in such Prospectus opposite such
owner's name.
Dated:
Very truly yours,
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(Name)
By:
-----------------------------------
(Authorized Signature)
B-1
