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EXHIBIT 4.2
XXXXX MATERIAL HANDLING COMPANY
$130,000,000 10 3/4% Senior Notes due 2006
REGISTRATION RIGHTS AGREEMENT
November 27, 1996
XXXXXXXXX & COMPANY, INC.
00000 Xxxxx Xxxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
BEAR, XXXXXXX & CO. INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
XXXXX Material Handling Company, a Delaware corporation (the
"Company"), is issuing and selling to Xxxxxxxxx & Company, Inc. and Bear,
Xxxxxxx & Co. Inc. (collectively, the "Purchasers"), upon the terms set forth
in a purchase agreement, dated as of November 22, 1996 (the "Purchase
Agreement"), $130,000,000 aggregate principal amount of the Company's 10 3/4%
Senior Notes due 2006, Series A (the "Notes"). As an inducement to the
Purchasers to enter into the Purchase Agreement, the Company agrees with the
Purchasers, for the benefit of the holders of the Securities (defined below)
(including, without limitation, the Purchasers), as follows:
1. Definitions
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
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Advice: See Section 6.
Agreement: This Registration Rights Agreement.
Applicable Period: See Section 2(f).
Business Days: Any day other than (i) Saturday or Sunday, or (ii) a
day on which banking institutions in the State of New York are authorized or
obligated by law, governmental regulation or executive order to be closed.
Closing Date: November 27, 1996.
Effectiveness Date: March 27, 1997
Effectiveness Period: See Section 3(a).
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2(a).
Exchange Offer Registration Statement: See Section 2(a).
Exchange Securities: 10 3/4 Senior Notes due 2006 of the Company
that are identical in all material respects to the Notes, except for
references to series and restrictive legends.
Filing Date: January 26, 1997.
Guarantors: Any future Guarantors appointed in accordance with the
terms of the Indenture.
Holder: Each registered holder of Registrable Securities.
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Indenture: The Indenture, dated the date hereof, between the
Company and United States Trust Company of New York, as trustee, pursuant to
which the Notes are being issued, as amended or supplemented from time to
time, in accordance with the terms thereof.
Initial Shelf Registration: See Section 3(a).
Losses: See Section 8(a).
Maximum Contribution Amount: See Section 8(d).
NASD: The National Association of Securities Dealers, Inc.
Participating Broker-Dealer: See Section 2(f).
Person: An individual, trustee, corporation, partnership, joint
stock company, joint venture, trust, unincorporated organization or government
or any agency or political subdivision thereof, union, business association,
firm or other entity.
Private Exchange: See Section 2(g).
Private Exchange Securities: See Section 2(g).
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Securities covered
by such Registration Statement, and all other amendments and supplements to
the Prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference in such
Prospectus.
Registration Default: See Section 4(a).
Registrable Securities: (a) Notes, (b) Private Exchange Securities
and (c) Exchange Securities received by a Holder in the Exchange Offer that
may not be sold without restriction under state and federal securities laws
(other than due solely to the status of such Holder as an affiliate of the
Company within the
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meaning of the Securities Act), in each case until (i) a Registration
Statement covering such Notes, Private Exchange Securities or Exchange
Securities has been declared effective by the SEC and such Notes, Private
Exchange Securities or Exchange Securities, as the case may be, have been
disposed of in accordance with the effective Registration Statement, (ii) such
Notes have been exchanged pursuant to the Exchange Offer for Exchange
Securities that may be resold without restriction under state or federal
securities laws, or (iii) such Notes, Private Exchange Securities or Exchange
Security, as the case may be, cease to be outstanding for purposes of the
Indenture.
Registration Statement: Any registration statement of the Company
that covers any of the Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
Review: See Section 6(a).
Rule 144: Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC.
Rule 144A: Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
Rule 415: Rule 415 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
SEC: The Securities and Exchange Commission.
Securities: The Notes, the Private Exchange Securities and the
Exchange Securities, collectively.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(i).
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Shelf Registration: The Initial Shelf Registration and any
Subsequent Shelf Registration.
Special Counsel: Counsel chosen by the holders of a majority in
aggregate principal amount of Securities.
Subsequent Shelf Registration: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if any, the trustee
under any indenture governing the Exchange Securities or the Private Exchange
Securities.
Underwritten Registration or Underwritten Offering: A registration
in which securities of the Company are sold to an underwriter for reoffering
to the public.
Weekly Liquidated Damages Amount: See Section 4(a).
2. Exchange Offer
(a) The Company shall (i) prepare and file with the SEC promptly
after the date hereof, but in no event later than the Filing Date, a
registration statement (the "Exchange Offer Registration Statement") on an
appropriate form under the Securities Act with respect to a proposed offer
(the "Exchange Offer") to the Holders to issue and deliver to such Holders, in
exchange for the Notes, a like aggregate principal amount of Exchange
Securities, (ii) use its best efforts to cause the Exchange Offer Registration
Statement to become effective as promptly as practicable after the filing
thereof, but in no event later than the Effectiveness Date, (iii) keep the
Exchange Offer Registration Statement effective until the consummation of the
Exchange Offer pursuant to its terms, and (iv) unless the Exchange Offer would
not be permitted by a policy of the SEC, commence the Exchange Offer and use
its best efforts to issue, on or prior to 30 business days after the date on
which the Exchange Offer Registration Statement is declared effective,
Exchange Securities in exchange for all Notes tendered prior thereto in the
Exchange Offer.
The Exchange Offer shall not be subject to any conditions, other
than that (i) the Exchange Offer does not violate applicable law or any
applicable
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interpretation of the Staff of the SEC, (ii) no action or proceeding shall
have been instituted or threatened in any court or by any governmental agency
that could reasonably be expected to materially impair the ability of the
Company to proceed with the Exchange Offer, and no material adverse
development shall have occurred in any such existing action or proceeding with
respect to the Company, and (iii) all governmental approvals necessary for the
consummation of the Exchange Offer shall have been obtained.
(b) The Exchange Securities shall be issued under, and entitled to
the benefits of, the Indenture or a trust indenture that is identical to the
Indenture (with such changes to the Indenture that are necessary to comply
with any requirements of the SEC to effect or maintain the qualification
thereof under the TIA).
(c) In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal that is an exhibit thereto and related
documents;
(ii) keep the Exchange Offer open for not less than 20
Business Days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law);
(iii) utilize the services of a depository for the Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
(iv) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last Business Day on
which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all
laws applicable to the Exchange Offer.
(d) As soon as practicable after the close of the Exchange Offer,
the Company shall:
(i) accept for exchange all Notes validly tendered and
not validly withdrawn pursuant to the Exchange Offer;
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(ii) deliver to the Trustee for cancellation all Notes so
accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and
deliver to each Holder of Notes, Exchange Securities equal in aggregate
principal amount to the Notes of such Holder so accepted for exchange.
(e) Interest on each Exchange Security and Private Exchange
Security will accrue from the last interest payment date on which interest was
paid on the Notes surrendered in exchange therefor or, if no interest has been
paid on the Notes, from November 27, 1996.
(f) The Company shall include within the Prospectus contained in
the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," containing a summary statement of the positions taken or
policies made by the Staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange Securities received
by such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer").
Such "Plan of Distribution" section shall also allow the use of the Prospectus
by Participating Brokers-Dealers, and include a statement describing the means
by which Participating Broker-Dealers may resell the Exchange Securities.
If any Holder participating in the Exchange Offer makes the
representations contemplated by Section 2(h) (iv) hereof, the Company shall
use its best efforts to keep the Exchange Offer Registration Statement
effective and to amend and supplement the Prospectus to be lawfully delivered
by all Persons subject to the prospectus delivery requirement of the
Securities Act for a period of 180 days from the consummation of the Exchange
Offer (as such period may be extended pursuant to the last paragraph of
Section 6 hereof) (the "Applicable Period") or such earlier date as the
Company shall be notified in writing that such requesting Participating
Broker-Dealer has resold all Exchange Securities acquired in the Exchange
Offer.
(g) If, prior to consummation of the Exchange Offer, any Purchaser
holds any Notes acquired by it and having the status as an unsold allotment in
the initial distribution, the Company shall, upon the request of such
Purchaser, simultaneously with the delivery of the Exchange Securities in the
Exchange Offer, issue (pursuant to the same indenture as the Exchange
Securities) and deliver to such Purchaser, in exchange (the "Private
Exchange") for the
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Notes held by such Purchaser, a like principal amount of debt securities of
the Company that are identical to the Exchange Securities (the "Private
Exchange Securities"). The Private Exchange Securities shall bear the same
CUSIP number as the Exchange Securities.
(h) Each Holder participating in the Exchange Offer will be
required to represent to the Company in writing that (i) any Exchange
Securities received by such holder in the Exchange Offer will be acquired in
the ordinary course of its business, (ii) at the time of the consummation of
the Exchange Offer such Holder will have no arrangement or understanding with
any Person to participate in the distribution of the Exchange Securities
within the meaning of the Securities Act or resale of the Exchange Securities
in violation of the Securities Act, (iii) if such Holder is not a
broker-dealer, that it is not engaged in and does not intend to engage in, the
distribution of the Exchange Securities, (iv) if such Holder is a
broker-dealer that will receive Exchange Securities for its own account in
exchange for Notes that were acquired as a result of market-making or other
trading activities, that it will deliver a prospectus, as required by law, in
connection with any resale of such Exchange Securities, and (v) such Holder is
not an "affiliate" of the Company within the meaning of the Securities Act or,
if such Holder is an affiliate, that it will comply with the registration and
prospectus delivery requirements of the Securities Act applicable to it.
(i) If (i) prior to the consummation of the Exchange Offer, the
Company in its reasonable judgment determines that a majority in aggregate
principal amount of the Exchange Securities would not, upon receipt, be
tradeable by the holders thereof without restriction under the Securities Act
and the Exchange Act and without material restrictions under applicable Blue
Sky or state securities laws, (ii) applicable interpretations of the Staff of
the SEC would not permit the consummation of the Exchange Offer prior to the
Effectiveness Date, (iii) subsequent to the consummation of the Private
Exchange but within one year of the Closing Date, the Purchasers so request,
(iv) the Exchange Offer is not consummated within 240 days of the Closing Date
for any reason or (v) in the case of any Holder not permitted to participate
in the Exchange Offer or of any Holder participating in the Exchange Offer
that receives Exchange Securities that may not be sold without restriction
under state and federal securities laws (other than due solely to the status
of such Holder as an affiliate of the Company within the meaning of the
Securities Act) and, in either case contemplated by this clause (v), such
Holder notifies the Company within six months of consummation of the Exchange,
then the Company shall promptly deliver to the Holders (or in the case of any
occurrence of the event described in clause (iii) or (v) hereof, to the
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Purchasers or any such Holder, as applicable) and the Trustee (in the case of
clauses (i), (ii), (iii) and (iv)) notice thereof (the "Shelf Notice") and
shall as promptly as possible thereafter file an Initial Shelf Registration
pursuant to Section 3 hereof.
3. Shelf Registration
If a Shelf Notice is required to be delivered pursuant to Section
2(i) (i), (ii), or (iv), then this Section 3 shall apply to all Registrable
Securities. If a Shelf Notice is required to be delivered pursuant to Section
2(i)(iii), then this Section 3 shall apply solely to Private Exchange
Securities. If a Shelf Notice is required to be delivered pursuant to Section
2(i)(v), then this Section 3 shall apply solely to (i) Notes held by any
Holder thereof not permitted to participate in the Exchange Offer and (ii)
Exchange Securities that are not freely tradeable as contemplated by Section
2(i)(v) hereof.
(a) Initial Shelf Registration. The Company shall prepare and file
with the SEC a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Registrable
Securities (the "Initial Shelf Registration"). The Initial Shelf Registration
shall be on Form S-1 or another appropriate form permitting registration of
such Registrable Securities for resale by such holders in the manner or
manners designated by them (including, without limitation, one or more
underwritten offerings). The Company shall (i) not permit any securities
other than the Registrable Securities to be included in any Shelf
Registration, and (ii) use its best efforts to cause the Initial Shelf
Registration to be declared effective under the Securities Act as promptly as
practicable after the filing thereof, and to keep the Initial Shelf
Registration continuously effective under the Securities Act until the third
year anniversary of the Closing Date (the "Effectiveness Period"), or such
shorter period ending when (i) all Registrable Securities covered by the
Initial Shelf Registration have been sold pursuant to the Shelf Registration
or (ii) a Subsequent Shelf Registration covering all of the Registrable
Securities covered by and not sold under the Initial Shelf Registration or an
earlier Subsequent Shelf Registration has been declared effective under the
Securities Act; provided, that the Company may suspend the effectiveness of a
Shelf Registration for a period not to exceed 45 days in any calendar year (a
"Shelf Blackout Period"), and the three year period specified above shall be
extended by the number of days in the Shelf Blackout Period, if (i) an event
occurs and is continuing as a result of which the Shelf Registration would, in
the Company's good faith judgment, contain an untrue statement of a material
fact or omit to state a material fact necessary in
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order to make the statements therein not misleading and (ii) (A) the Company
determines in good faith that the disclosure of such event at such time would
have a material adverse effect on the business, operations or prospects of the
Company and its subsidiaries, taken as a whole, or (B) the disclosure
otherwise relates to a pending material business transaction that has not yet
been publicly disclosed.
(b) Subsequent Shelf Registrations. If any Shelf Registration
ceases to be effective for any reason at any time during the Effectiveness
Period (other than because of the sale of all of the securities registered
thereunder), the Company shall use its best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, as soon as
practicable after such cessation of effectiveness, to amend the Shelf
Registration in a manner reasonably expected to obtain the withdrawal of the
order suspending the effectiveness thereof, or to file an additional "shelf"
Registration Statement pursuant to Rule 415 covering all of the Registrable
Securities covered by and not sold under the Initial Shelf Registration or an
earlier Subsequent Shelf Registration (a "Subsequent Shelf Registration"). If
a Subsequent Shelf Registration is filed, the Company shall use its best
efforts to cause the Subsequent Shelf Registration to be declared effective as
soon as practicable after such filing and to keep such Subsequent Shelf
Registration continuously effective for a period equal to the number of days
in the Effectiveness Period less the aggregate number of days during which the
Initial Shelf Registration, and any Subsequent Shelf Registration, was
previously continuously effective.
4. Liquidated Damages.
(a) The Company acknowledges and agrees that the holders of
Registrable Securities will suffer damages, and that it would not be feasible
to ascertain the extent of such damages with precision, if the Company fails
to fulfill its obligations hereunder. Accordingly, in the event of such
failure by the Company to fulfill such obligations, the Company hereby agrees
to pay liquidated damages to each holder of Registrable Securities under the
circumstances and to the extent set forth below:
(i) if neither the Exchange Offer Registration Statement nor
the Initial Shelf Registration has been filed with the SEC on or prior to
the Filing Date; or
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(ii) if neither the Exchange Offer Registration Statement nor
the Initial Shelf Registration is declared effective by the SEC on or
prior to the Effectiveness Date; or
(iii) if the Company has not exchanged Exchange Securities for
all Notes validly tendered in accordance with the terms of the Exchange
Offer within 30 days after the date on which an Exchange Offer
Registration Statement is declared effective by the SEC; or
(iv) the Initial Shelf Registration is filed and declared
effective by the SEC but thereafter ceases to be effective without
being succeeded within 30 days by a Subsequent Shelf Registration
filed and declared effective;
(each of the foregoing, a "Registration Default").
Accordingly, upon the occurrence of a Registration Default, the
Company shall pay, or cause to be paid, as liquidated damages, and not as a
penalty, to each holder of a Registrable Security, an additional amount (the
"Weekly Liquidated Damages Amount") equal to (A) for each weekly period
beginning on the date such Registration Default occurs for the first 90-day
period immediately following such date, $.05 per week per $1,000 principal
amount of Registrable Securities held by such holder, and (B) for each weekly
period beginning with the first full week after the 90-day period set forth in
the foregoing clause (A), $.10 per week per $1,000 principal amount of
Registrable Securities held by such holder; provided that such liquidated
damages will, in each case, cease to accrue (subject to the occurrence of
another Registration Default) on the date on which all Registration Defaults
have been cured. A Registration Default under clause (i) above shall be cured
on the date that either the Exchange Offer Registration Statement or the
Initial Shelf Registration is filed with the SEC; a Registration Default under
clause (ii) above shall be cured on the date that either the Exchange Offer
Registration Statement or the Initial Shelf Registration is declared effective
by the SEC; a Registration Default under clause (iii) above shall be cured on
the earlier of the date (A) the Exchange Offer is consummated with respect to
all Notes validly tendered or (B) the Company delivers a Shelf Notice to the
Holders of Registrable Securities; and a Registration Default under clause
(iv) above shall be cured on the earlier of (A) the date on which the
applicable Shelf Registration is no longer subject to an order suspending the
effectiveness thereof or proceedings relating thereto or (B) a new Subsequent
Shelf Registration is declared effective.
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(b) The Company shall notify the Trustee within five Business Days
after each Registration Default. The Company shall pay the liquidated damages
due on the Registrable Securities by depositing with the Trustee, in trust,
for the benefit of the Holders thereof, by 12:00 noon, New York City time, on
the applicable payment dates specified in the Indenture (or other indenture
relating to the Registrable Securities), immediately available funds in sums
sufficient to pay the liquidated damages then due. The liquidated damages
amount due shall be payable semi-annually on each such interest payment date
to the record holder of Registrable Securities entitled to receive the
interest payment to be made on such date as set forth in the Indenture,
commencing with the first payment date occurring after any Registration
Default.
5. [Intentionally Left Blank]
6. Registration Procedures
In connection with the registration of any Securities pursuant to
Sections 2 or 3 hereof, the Company shall effect such registrations to permit
the sale of such Securities in accordance with the intended method or methods
of disposition thereof, and pursuant thereto the Company shall:
(a) Prepare and file with the SEC, on or prior to the Filing Date,
a Registration Statement or Registration Statements as prescribed by Section 2
or 3, and use its best efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; provided, that, if
(i) such filing is pursuant to Section 3 or (ii) a Prospectus contained in an
Exchange Offer Registration Statement filed pursuant to Section 2 is required
to be delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities during the Applicable Period relating
thereto, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Company shall, if requested, furnish to
and afford the Holders of the Registrable Securities covered by such
Registration Statement, their Special Counsel, each Participating
Broker-Dealer, the managing underwriters, if any, and their counsel a
reasonable opportunity to review copies of all such documents (including
copies of any documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed, such financial and other information
and books and records of the Company, and cause the officers, directors and
employees of the Company, Company counsel and the independent certified public
accountants of the Company to respond to such inquiries (such actions are
hereinafter collectively referred to as the "Review"), as shall be reasonably
neces-
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sary, in the opinion of respective counsel to such holders, Participating
Broker-Dealer and underwriters, to conduct a reasonable investigation within
the meaning of the Securities Act. The Company may require each Holder to
agree to keep confidential any non-public information relating to the Company
received by such Holders and not disclose such information (other than to an
Affiliate or prospective purchaser who agrees to respect the confidentiality
provisions of this Section 6(a)) until such information has been made
generally available to the public unless the release of such information is
required by law or necessary to respond to inquiries of regulatory authorities
(including the National Association of Insurance Commissioners, or similar
organizations or their successors). The Company shall not file any
Registration Statement or Prospectus or any amendments or supplements thereto
in respect of which the Holders must be afforded an opportunity to Review
prior to the filing of such document, if the Holders of a majority in
aggregate principal amount of the Registrable Securities covered by such
Registration Statement, their Special Counsel, any Participating Broker-Dealer
or the managing underwriters, if any, or their counsel shall reasonably object
to the Company if such objection states that the person or persons making such
objection believe that such Registration Statement, Prospectus or amendment
does not comply in any material respect with any applicable law.
(b) Provide an indenture trustee for the Registrable Securities or
the Exchange Securities, as the case may be, and cause the Indenture (or other
indenture relating to the Registrable Securities) to be qualified under the
TIA not later than the effective date of the first Registration Statement; and
in connection therewith, use its best efforts to effect such changes to such
indenture as may be required for such indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use its best efforts to
cause such trustee to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with the SEC
to enable such indenture to be so qualified in a timely manner.
(c) Prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the time periods
required hereby; cause the related Prospectus to be supplemented by any
Prospectus supplement required by Applicable Law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply in all material respects with the provisions of the
Securities Act and the Exchange Act applicable thereto with respect to the
disposition of all securities covered by such Registration Statement, as so
amended, or in such
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Prospectus, as so supplemented, in accordance with the intended methods of
distribution set forth in such Registration Statement or Prospectus as so
amended.
(d) Furnish to such selling Holders and Participating
Broker-Dealers who so request (i) upon the Company's receipt, a copy of the
order of the SEC declaring such Registration Statement and any post-effective
amendment thereto effective and (ii) such reasonable number of copies of such
Registration Statement and of each amendment and supplement thereto (in each
case including any documents incorporated therein by reference and all
exhibits), (iii) such reasonable number of copies of the Prospectus included
in such Registration Statement (including each preliminary Prospectus), and
such reasonable number of copies of the final Prospectus as filed by the
Company pursuant to Rule 424(b) under the Securities Act, in conformity with
the requirements of the Securities Act, and (iv) such other documents
(including any amendments required to be filed pursuant to clause (c) of this
Section), as any such Person may reasonably request. The Company hereby
consents to the use of the Prospectus by each of the selling Holders of
Registrable Securities or each such Participating Broker-Dealer, as the case
may be, and the underwriters or agents, if any, and dealers (if any), in
connection with the offering and sale of the Registrable Securities covered
by, or the sale by Participating Broker-Dealers of the Exchange Securities
pursuant to, such Prospectus and any amendment thereto.
(e) If (A) a Shelf Registration is filed pursuant to Section 3 or
(B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, notify the selling Holders of Registrable Securities,
their Special Counsel, each Participating Broker-Dealer and the managing
underwriters, if any, as promptly as possible, and confirm such notice in
writing, (i) when a Prospectus has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has
become effective under the Securities Act, (ii) of the issuance by the SEC of
any stop order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any Prospectus or the initiation
of any proceedings for that purpose, (iii) if, at any time when a Prospectus
is required by the Securities Act to be delivered in connection with sales of
Registrable Securities, the representations and warranties of the Company
contained in any agreement (including any underwriting agreement) contemplated
by Section 6(n) below cease to be true and correct in any material respect,
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of a
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Registration Statement or any of the Registrable Securities or the Exchange
Securities to be sold by any Participating Broker-Dealer for offer or sale in
any jurisdiction, or the contemplation, initiation or threatening of any
proceeding for such purpose, (v) of the happening of any event that makes any
statement made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in such
Registration Statement, Prospectus or documents so that it will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, and
(vi) of the Company's reasonable determination that a post-effective amendment
to a Registration Statement would be appropriate.
(f) Prior to any public offering of Registrable Securities or any
delivery of a Prospectus contained in the Exchange Offer Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange
Securities during the Applicable Period, use its best efforts to register or
qualify, and, if applicable, to cooperate with the selling Holders of
Registrable Securities, the underwriters, if any, and their respective counsel
in connection with the registration or qualification (or exemption from such
registration or qualification) of, such Registrable Securities to be included
in a Registration Statement for offer and sale under the securities or Blue
Sky laws of such jurisdictions in the United States as any selling Holder,
Participating Broker-Dealer or the managing underwriters, if any, reasonably
request in writing; and, if Securities are offered other than through an
Underwritten Offering, the Company shall cause its counsel to perform Blue Sky
investigations and file registrations and qualifications required to be filed
pursuant to this Section 6(f) at the expense of the Company; keep each such
registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do any
and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Securities covered by the applicable
Registration Statement; provided, that the Company shall not be required in
connection therewith to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it is not now so qualified or to subject itself to taxation
in respect of doing business in any jurisdiction in which it is not otherwise
so subject.
(g) If (A) a Shelf Registration is filed pursuant to Section 3 or
(B) a Prospectus contained in an Exchange Offer Registration Statement filed
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pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, use its best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, and, if any such order is issued, to
use its best efforts to obtain the withdrawal of any such order at the
earliest practicable time.
(h) If (A) a Shelf Registration is filed pursuant to Section 3 or
(B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, and if requested by the managing underwriters, if any,
or the Holders of a majority in aggregate principal amount of the Registrable
Securities, (i) promptly incorporate in a Prospectus or post-effective
amendment such information as the managing underwriters, if any, or such
Holders reasonably request to be included therein required to comply with any
applicable law and (ii) make all required filings of such Prospectus or such
post-effective amendment as soon as practicable after the Company has received
notification of such matters required by applicable law to be incorporated in
such Prospectus or post-effective amendment; provided, that the Company shall
not be required to take any action under this clause (h) that would, in the
opinion of counsel to the Company, violate applicable law.
(i) If (A) a Shelf Registration is filed pursuant to Section 3 or
(B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, cooperate with the selling Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company ("DTC"); and enable
such Registrable Securities to be in such denominations and registered in such
names as the managing underwriters, if any, or Holders may request at least
two Business Days prior to any sale of Registrable Securities.
(j) If (A) a Shelf Registration is filed pursuant to Section 3 or
(B) a Prospectus contained in an Exchange Offer Registration Statement filed
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pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, upon the occurrence of any event contemplated by
paragraph 6(e)(v) or 6(e)(vi) above, as promptly as practicable prepare a
supplement or post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable Securities
being sold thereunder or to the purchasers of the Exchange Securities to whom
such Prospectus will be delivered by a Participating Broker-Dealer, such
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(k) Use its best efforts to cause the Securities covered by a
Registration Statement to be rated with the appropriate rating agencies, if
appropriate, if so requested by the Holders of a majority in aggregate
principal amount of Securities covered by such Registration Statement or the
managing underwriters, if any.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Securities, (i) provide the Trustee with
certificates for the Registrable Securities in a form eligible for deposit
with DTC and (ii) provide a CUSIP number for the Registrable Securities.
(m) [Intentionally Left Blank]
(n) If a Shelf Registration is filed pursuant to Section 3, enter
into such agreements (including an underwriting agreement in form, scope and
substance as is customary in Underwritten Offerings) and take all such other
actions in connection therewith (including those reasonably requested by the
managing underwriters, if any, or the Holders of a majority of the Registrable
Securities being sold) in order to expedite or facilitate the registration or
the disposition of such Registrable Securities, and in such connection,
whether or not an underwriting agreement is entered into and whether or not
the registration is an Underwritten Registration, (i) make such
representations and warranties to the Holders and the underwriters, if any,
with respect to the business of the Company and its subsidiaries, and the
Registration Statement, Prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, in form,
substance and scope as are customarily made by issuers to under-
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writers in Underwritten Offerings of debt securities similar to the Notes, and
confirm the same if and when reasonably requested; (ii) use its best efforts
to obtain opinions of counsel to the Company and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and the Holders of a
majority in principal amount of the Registrable Securities being sold),
addressed to each selling Holder of Registrable Securities and each of the
underwriters, if any, covering the matters customarily covered in opinions
requested in Underwritten Offerings; (iii) use its best efforts to obtain
"cold comfort" letters and updates thereof (which letters and updates (in
form, scope and substance) shall be reasonably satisfactory to the managing
underwriters) from the independent certified public accountants of the Company
(and, if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be, included in
the Registration Statement), addressed to each of the underwriters and each
selling Holder of Registrable Securities, such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort" letters
in connection with Underwritten Offerings; and (iv) use its best efforts to
deliver such documents and certificates as may be reasonably requested by the
Holders of a majority in principal amount of the Registrable Securities being
sold and the managing underwriters, if any, to evidence the continued validity
of the representations and warranties of the Company and its subsidiaries made
pursuant to clause (i) above and to evidence compliance with any conditions
contained in the underwriting agreement or other similar agreement entered into
by the Company.
(o) Comply in all material respects with all applicable rules and
regulations of the SEC and make generally available to its security holders
earnings statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) (i) commencing on the first day of the fiscal quarter following each
fiscal quarter in which Registrable Securities are sold to underwriters in a
firm commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(p) Upon consummation of an Exchange Offer or Private Exchange,
obtain an opinion of counsel to the Company (in form, scope and sub-
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stance customary for underwritten transactions), addressed to the Trustee for
the benefit of all Holders participating in the Exchange Offer or Private
Exchange, as the case may be, to the effect that (i) the Company has duly
authorized, executed and delivered the Exchange Securities or the Private
Exchange Securities, as the case may be, and the Indenture, and (ii) the
Exchange Securities or the Private Exchange Securities, as the case may be,
and the Indenture constitute legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their respective
terms, subject to customary exceptions and qualifications.
(q) If an Exchange Offer or Private Exchange is to be consummated,
upon delivery of the Registrable Securities by such Holders to the Company (or
to such other Person as directed by the Company) in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be, the Company
shall xxxx, or caused to be marked, on such Registrable Securities that such
Registrable Securities are being cancelled in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be; in no event
shall such Registrable Securities be marked as paid or otherwise satisfied.
(r) Cooperate with each seller of Registrable Securities covered by
any Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD.
(s) Use its best efforts to take all other steps necessary to
effect the registration of the Registrable Securities covered by a
Registration Statement contemplated hereby.
The Company may require each seller of Registrable Securities or
Participating Broker-Dealer as to which any registration is being effected to
furnish to the Company such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Securities or Exchange
Securities as the Company may, from time to time, reasonably request and to
provide comments with respect to the Registration Statement to be used in
connection with any Shelf Registration. The Company may exclude from such
registration the Registrable Securities or Exchange Securities of any Seller
so long as such seller fails to furnish such information.
Each Holder of Registrable Securities and each Participating
Broker-Dealer agrees by acquisition of such Registrable Securities or Exchange
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Securities of any Participating Broker-Dealer that, upon receipt of written
notice from the Company of the happening of any event of the kind described in
Section 6(e)(ii), 6(e)(iv), 6(e)(v) or 6(e)(vi), such Holder will forthwith
discontinue disposition (in the jurisdictions specified in a notice of a
6(e)(iv) event, and elsewhere in a notice of a 6(e)(ii), 6(e)(v) or 6(e)(vi)
event) of such Registrable Securities covered by such Registration Statement
or Prospectus to be sold by such Holder until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 6(j),
or until it is advised in writing (the "Advice") by the Company that offers or
sales in a particular jurisdiction may be resumed or that the use of the
applicable Prospectus may be resumed, as the case may be, and has received
copies of any amendments or supplements thereto. If the Company shall give
such notice, each of the Effectiveness Period and the Applicable Period shall
be extended by the number of days during such periods from and including the
date of the giving of such notice to and including the date when each seller
of such Registrable Securities covered by such Registration Statement shall
have received (x) the copies of the supplemented or amended Prospectus
contemplated by Section 6(j) or (y) the Advice.
7. Registration Expenses
(a) All fees and expenses incident to the Company's performance of
or compliance with this Agreement shall be borne by the Company whether or not
the Exchange Offer or a Shelf Registration is filed or becomes effective,
including, without limitation:
(i) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required to be made
with the NASD by the Purchasers or in connection with an underwritten
offering and (B) fees and expenses of compliance with state securities or
Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of
the Registrable Securities or Exchange Securities and determination of
the eligibility of the Registrable Securities or Exchange Securities for
investment under the laws of such jurisdictions (x) where the Holders of
Registrable Securities are located, in the case of the Exchange
Securities, or (y) as provided in Section 6(f), in the case of
Registrable Securities or Exchange Securities to be sold by a
Participating Broker-Dealer during the Applicable Period);
(ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities
or Exchange
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Securities in a form eligible for deposit with DTC and of printing
prospectuses if the printing of prospectuses is requested by the managing
underwriters, if any, or, in respect of Registrable Securities or
Exchange Securities to be sold by a Participating Broker-Dealer during
the Applicable Period, by the holders of a majority in aggregate
principal amount of the Registrable Securities included in any
Registration Statement or of such Exchange Securities, as the case may
be);
(iii) messenger, telephone, duplication, word
processing and delivery expenses incurred by the Company in the
performance of its obligations hereunder;
(iv) fees and disbursements of counsel for the
Company;
(v) fees and disbursements of all independent
certified public accountants for the Company referred to in Section
6(n)(iii) (including, without limitation, the expenses of any special
audit and "cold comfort" letters required by or incident to such
performance);
(vi) fees and expenses of any "qualified independent
underwriter" or other independent appraiser participating in an offering
pursuant to Section 3 of Schedule E to the By-laws of the NASD, but only
where the need for such a "qualified independent underwriter" arises due
to a relationship with the Company;
(vii) Securities Act liability insurance, if the
Company so desires such insurance;
(viii) fees and expenses of all other Persons
retained by the Company; internal expenses of the Company (including,
without limitation, all salaries and expenses of officers and employees
of the Company performing legal or accounting duties); and the expense of
any annual audit; and
(ix) rating agency fees and the fees and expenses
incurred in connection with the listing of the Securities to be
registered on any securities exchange.
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(b) The Company shall reimburse the Holders for the reasonable fees
and disbursements of not more than one counsel chosen by the holders of a
majority in aggregate principal amount of the Registrable Securities to be
included in any Registration Statement. Notwithstanding the foregoing, each
Holder shall pay all underwriting discounts and commissions of any
underwriters with respect to any Registrable Securities sold by or on its
behalf.
8. Indemnification
(a) Indemnification by the Company. The Company shall, without
limitation as to time, indemnify and hold harmless each Holder, each
Participating Broker-Dealer selling Exchange Securities, each Person who
controls each such Holder or such Participating Broker-Dealer (within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act) and the officers, directors, partners, employees, representatives and
agents of each such Holder, Participating Broker-Dealer and controlling
person, to the fullest extent lawful, from and against any and all losses,
claims, damages, liabilities, costs (including, without limitation, costs of
preparation and reasonable attorneys' fees) and expenses (including, without
limitation, reasonable costs and expenses incurred in connection with
investigating, preparing, pursuing or defending against any of the foregoing)
(collectively, "Losses"), as incurred, directly or indirectly caused by,
related to, based upon, arising out of or in connection with any untrue or
alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus or form of prospectus, or in any amendment or supplement
thereto, or in any preliminary prospectus, or any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading except insofar as such Losses arise out of or
are based upon information relating to such Holder or Participating
Broker-Dealer and furnished in writing to the Company by, and relating to,
such Holder or Participating Broker-Dealer expressly for use therein. The
Company shall also indemnify underwriters, selling brokers, dealer managers
and similar securities industry professionals participating in the
distribution, their officers, directors, agents and employees and each Person
who controls such Persons (within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Exchange Act) to the same extent as provided above
with respect to the indemnification of the Holders or the Participating
Broker-Dealer except insofar as such Losses are based solely upon (i)
information furnished by such party to the Company expressly for use therein
or (ii) such underwriter's gross negligence or willful misconduct. The
foregoing indemnity with respect to any preliminary prospectus shall not inure
to
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the benefit of any indemnified person from whom the person asserting such
Losses purchased securities if such untrue statement or omission or alleged
untrue statement or omission made in such preliminary prospectus is eliminated
or remedied in the Prospectus and a copy of the Prospectus shall not have been
furnished to such person in a timely manner due to the action or inaction of
such indemnified person.
(b) Indemnification by Holder of Registrable Securities. In
connection with any Registration Statement, Prospectus or form of prospectus,
any amendment or supplement thereto, or any preliminary prospectus in which a
Holder is participating, such Holder shall furnish to the Company in writing
such information as the Company reasonably requests for use in connection with
any Registration Statement, Prospectus or form of prospectus, any amendment or
supplement thereto, or any preliminary prospectus and shall, without
limitation as to time, indemnify and hold harmless the Company, its directors,
officers, agents and employees, each Person, if any, who controls the Company
(within the meaning of Section 15 of the Securities Act and Section 20(a) of
the Exchange Act), and the directors, officers, representatives, agents or
employees of such controlling persons, to the fullest extent lawful, from and
against all Losses arising out of or based upon any untrue or alleged untrue
statement of a material fact contained in any Registration Statement,
Prospectus or form of prospectus or in any amendment or supplement thereto or
in any preliminary prospectus, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading to the extent, but only to the extent, that such untrue
statement or alleged untrue statement of a material fact or omission or
alleged omission of a material fact is contained in any information so
furnished in writing by such holder to the Company expressly for use therein.
(c) Conduct of Indemnification Proceedings. If any Proceedings
shall be brought or asserted against any Person entitled to indemnity
hereunder (an "indemnified party"), such indemnified party shall promptly
notify the party or parties from which such indemnity is sought (the
"indemnifying parties") in writing; provided, however, that the failure to so
notify the indemnifying parties shall not relieve the indemnifying parties
from any obligation or liability except to the extent (but only to the extent)
that it shall be finally determined by a court of competent jurisdiction
(which determination is not subject to appeal) that the indemnifying parties
have been prejudiced materially by such failure.
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The indemnifying party shall have the right, exercisable by giving
written notice to an indemnified party, within 20 business days after receipt
of written notice from such indemnified party of such Proceeding, to assume,
solely at its expense, the defense of any such Proceeding, provided, however,
that an indemnified party shall have the right to employ separate counsel in
any such Proceeding and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
or parties unless: (1) the indemnifying party has agreed to pay such fees and
expenses; or (2) the indemnifying party shall have failed promptly to assume
the defense of such Proceeding or shall have failed to employ counsel
reasonably satisfactory to such indemnified party; or (3) the named parties to
any such Proceeding (including any impleaded parties) include both such
indemnified party and the indemnifying party or any of its affiliates or
controlling persons, and such indemnified party shall have been advised by
counsel that there may be one or more defenses available to such indemnified
party that are in addition to, or in conflict with, those defenses available
to the indemnifying party or such affiliate or controlling person (in which
case, if such indemnified party notifies the indemnifying parties in writing
that it elects to employ separate counsel at the expense of the indemnifying
parties, the indemnifying parties shall not have the right to assume the
defense thereof and the reasonable fees and expenses of such counsel shall be
at the expense of the indemnifying party; it being understood, however, that,
the indemnifying party shall not, in connection with any one such Proceeding
or separate but substantially similar or related Proceedings in the same
jurisdiction, arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for such indemnified
party).
No indemnifying party shall be liable for any settlement of any such
Proceeding effected without its written consent, which consent shall not be
unreasonably withheld, but if settled with its written consent, or if there be
a final judgment for the plaintiff in any such Proceeding, each indemnifying
party jointly and severally agrees, subject to the exceptions and limitations
set forth above, to indemnify and hold harmless each indemnified party from
and against any and all Losses by reason of such settlement or judgment. The
indemnifying party shall not consent to the entry of any judgment or enter
into any settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff to each indemnified party of a release, in
form and substance reasonably satisfactory to the indemnified party, from all
liability in respect of such Proceeding for which such indemnified party would
be entitled to indemnification hereunder (whether or not any indemnified party
is a party thereto).
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(d) Contribution. If the indemnification provided for in this
Section 8 is unavailable to an indemnified party or is insufficient to hold
such indemnified party harmless for any Losses in respect of which this
Section 8 would otherwise apply by its terms (other than by reason of
exceptions provided in this Section 8), then each applicable indemnifying
party, in lieu of indemnifying such indemnified party, shall have a joint and
several obligation to contribute to the amount paid or payable by such
indemnified party as a result of such Losses, (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying
party, on the one hand, and such indemnified party, on the other hand, from
the offering of the Notes, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the indemnifying party, on the one hand, and such
indemnified party, on the other hand in connection with the actions,
statements or omissions that resulted in such Losses as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party, on the one hand, and indemnified party, on the other hand, shall be
determined by reference to, among other things, whether any 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
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent any such statement or
omission. The amount paid or payable by an indemnified party as a result of
any Losses shall be deemed to include any reasonable legal or other fees or
expenses actually incurred by such party in connection with any Proceeding, to
the extent such party would have been indemnified for such fees or expenses if
the indemnification provided for in Section 8(a) or 8(b) was available to such
party.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 8(d), an
indemnifying party that is a selling Holder of Registrable Securities shall
not be required to contribute, in the aggregate, any amount in excess of such
Holder's Maximum Contribution Amount. A selling Holder's "Maximum
Contribution Amount" shall equal the excess of (i) the aggregate proceeds
received by such Holder pursuant to the sale of such Registrable Securities
over (ii) the aggregate amount of damages that such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement of a
material fact or omission or alleged omission of a material fact.
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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 indemnity and contribution agreements contained in this Section
8 are in addition to any liability that the indemnifying parties may have to
the indemnified parties, provided that any excess payment made by the Company
shall be refunded to the Company by the indemnified party receiving such
excess payment.
9. Rule 144 and Rule 144A
The Company covenants that it shall (a) file the reports required to
be filed by it (if so required) under the Securities Act and the Exchange Act
in a timely manner and, if at any time the Company is not required to file
such reports, it will, upon the request of any Holder make available other
information necessary to permit sales pursuant to Rule 144 and Rule 144A and
(b) take such further action as any Holder 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 pursuant to the
exemptions provided by Rule 144 and Rule 144A. Nothing in this Section 9
shall be deemed to require the Company to register any of its securities
pursuant to the Exchange Act.
10. Underwritten Registrations
If any of the Registrable Securities covered by any Shelf
Registration are to be sold in an Underwritten Offering, the investment banker
or investment bankers and manager or managers that will manage the offering
will be selected by the Holders of a majority in aggregate principal amount of
such Registrable Securities included in such offering with the written consent
of the Company, which consent will not be unreasonably withheld.
No holder of Registrable Securities may participate in any
Underwritten Registration hereunder unless such holder (a) 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 (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
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11. Miscellaneous
(a) Guarantors. If any Guarantors are appointed under the terms of
the Indenture, the Company hereby agrees to cause such Guarantor to be bound
by the terms hereof as if it was the Company hereunder and the guaranty was
the Registrable Security.
(b) Remedies. In the event of a breach by the Company of any of
its obligations under this Agreement, each Holder, in addition to being
entitled to exercise all rights provided herein, or granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby further agrees that, in the
event of any action for specific performance in respect of such breach, it
shall waive the defense that a remedy at law would be adequate.
(c) No Inconsistent Agreements. The Company has not entered into,
as of the date hereof, and shall not enter into, after the date of this
Agreement, any agreement with respect to any of its securities that is
inconsistent with the rights granted to the holders of Registrable Securities
in this Agreement or otherwise conflicts with the provisions hereof.
(d) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of
Holders of at least a majority of the then outstanding aggregate principal
amount of Registrable Securities; provided, however, that Section 8 shall not
be amended, modified or supplemented, and waivers or consents to departures
from this proviso may not be given, unless the Company has obtained the
written consent of each Holder. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Registrable Securities are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of at
least a majority in aggregate principal amount of the Registrable Securities
being sold by such Holders pursuant to such Registration Statement, provided
that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the immediately
preceding sentence.
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(e) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee)
provided for or permitted hereunder shall be made in writing by hand-delivery,
certified first-class mail, return receipt requested, next-day air courier or
facsimile:
(i) if to a Holder, at the most current address
given by such Holder to the Company in accordance with the provisions of
this Section 11(d), which address initially is, with respect to each
holder, the address of such holder maintained by the Registrar under the
Indenture, with a copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx, 000 Xxxxx
Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, telecopy number (213)
687-5600, Attention: Xxxxxxx X. Xxxxxxxx, Esq.; and
(ii) if to the Company, 000 Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx 00000, Attention: Chief Executive Officer, and thereafter at
such other address, notice of which is given in accordance with the
provisions of this Section 11(d), with a copy to Dechert Price & Xxxxxx,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxx.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; one
business day after being timely delivered to a next-day air courier; and when
receipt is acknowledged by the addressee, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
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(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO
CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH
OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE
COMPANY IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS SAID
ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF ANY HOLDER TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
(j) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in
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no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may
be hereafter declared invalid, illegal, void or unenforceable.
(k) Entire Agreement. This Agreement is intended by the parties as
a final expression of their agreement, and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred
to herein, with respect to the registration rights granted by the Company in
respect of securities sold pursuant to the Purchase Agreement. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(l) Attorneys' Fees. In any action or Proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the prevailing party, as determined by the
courts, shall be entitled to recover reasonable attorneys' fees in addition to
its costs and expenses and any other available remedy.
(m) Securities Held by the Company or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company
or its affiliates (as such term is defined in Rule 405 under the Securities
Act) (other than the Holders that are deemed to be such affiliates solely by
reason of their holdings of such Registrable Securities) shall not be counted
in determining whether such consent or approval was given by the holders of
such required percentage.
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REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
XXXXX MATERIAL HANDLING COMPANY
By: /s/
-----------------------------------------
Name:
Title:
ACCEPTED AND AGREED TO:
XXXXXXXXX & COMPANY, INC.
By: /s/
------------------------------
Name:
Title:
BEAR, XXXXXXX & CO. INC.
By: /s/
------------------------------
Name:
Title:
