Exhibit 4.1(b)
EXECUTION COPY
PAHC HOLDINGS CORPORATION
$29,000,000 15% SENIOR SECURED NOTES DUE 2010
REGISTRATION RIGHTS AGREEMENT
February 10, 2005
XXXXXXXXX & COMPANY, INC.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
PAHC Holdings Corporation, a Delaware corporation (the "Issuer") is issuing
and selling to Xxxxxxxxx & Company, Inc. (the "Initial Purchaser"), upon the
terms set forth in the Purchase Agreement, dated February 7, 2005, by and
between the Issuer and the Initial Purchaser (the "Purchase Agreement"),
$29,000,000 aggregate principal amount of its 15% Senior Secured Notes due 2010
(together with the PIK Notes, if any, the "Notes"). As an inducement to the
Initial Purchaser to enter into the Purchase Agreement, the Issuer agrees with
the Initial Purchaser, for the benefit of the Holders (as defined below) of the
Notes (including, without limitation, the Initial Purchaser), as follows:
1. DEFINITIONS
Capitalized terms that are used herein without definition and are defined
in the Purchase Agreement shall have the respective meanings ascribed to them in
the Purchase Agreement. As used in this Agreement, the following terms shall
have the following meanings:
ADDITIONAL INTEREST: See Section 4(a).
ADVICE: See Section 6(v).
AGREEMENT: This Registration Rights Agreement, dated as of the Closing
Date, between the Issuer and the Initial Purchaser.
APPLICABLE PERIOD: See Section 2(e).
BUSINESS DAY: A day that is not a Saturday, a Sunday or a day on which
banking institutions in the City of New York are authorized or required by law
or executive order to be closed.
CLOSING DATE: February 10, 2005.
COLLATERAL AGREEMENTS: Shall have the meaning set forth in the Indenture.
DAY: Unless otherwise expressly provided, a calendar day.
EFFECTIVENESS DATE: The 180th day after the Closing Date.
EFFECTIVENESS PERIOD: See Section 3(a).
EVENT DATE: See Section 4(b).
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
EXCHANGE NOTES: The Senior Secured Notes due 2010 of the Issuer registered
under the Securities Act, identical in all material respects to the Notes,
except for restrictive legends and additional interest provisions.
EXCHANGE OFFER: See Section 2(a).
EXCHANGE REGISTRATION STATEMENT: See Section 2(a).
FILING DATE: The 120th day after the Closing Date.
HOLDER: Any registered holder of Registrable Notes.
INDEMNIFIED PARTY: See Section 8(c).
INDEMNIFYING PARTY: See Section 8(c).
INDENTURE: The Indenture, dated as of February 10, 2005, between the Issuer
and HSBC Bank USA, National Association 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 PURCHASER: See the introductory paragraph to this Agreement.
INITIAL SHELF REGISTRATION: See Section 3(a).
INSPECTORS: See Section 6(o).
ISSUER: See the introductory paragraph to this Agreement.
LOSSES: See Section 8(a).
NASD: National Association of Securities Dealers, Inc.
NOTES: See the introductory paragraph to this Agreement.
PARTICIPATING BROKER-DEALER: See Section 2(e).
PERSON: An individual, trustee, corporation, partnership, limited liability
company, joint stock company, trust, unincorporated association, union, business
association, firm, government or agency or political subdivision thereof, or
other legal entity.
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PIK NOTES: 15% Senior Secured Notes due 2010 of the Company issued in lieu
of the payment of interest in cash on any Note.
PRIVATE EXCHANGE: See Section 2(f).
PRIVATE EXCHANGE NOTES: See Section 2(f).
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 Registrable Notes 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.
PURCHASE AGREEMENT: See the introductory paragraph to this Agreement.
RECORDS: See Section 6(o).
REGISTRABLE NOTES: (i) Notes, (ii) Private Exchange Notes and (iii)
Exchange Notes received in the Exchange Offer, in each case, that may not be
sold free of the registration and prospectus delivery requirements of the
Securities Act.
REGISTRATION STATEMENT: Any registration statement of the Issuer filed with
the SEC under the Securities Act (including, but not limited to, the Exchange
Registration Statement, the Shelf Registration and any subsequent Shelf
Registration) that covers any of the Registrable Notes 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.
RULE 144: Rule 144 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer or such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
RULE 144A: Rule 144A promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
RULE 415: Rule 415 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
RULE 430A: Rule 430A promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
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SEC: The Securities and Exchange Commission.
SECURITIES: The Notes, the Exchange Notes and the Private Exchange Notes.
SECURITIES ACT: The Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
SHELF NOTICE: See Section 2(j).
SHELF REGISTRATION: See Section 3(b).
SUBSEQUENT SHELF REGISTRATION: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
TRUSTEE: The trustee under the Indenture and, if existent, the trustee
under any indenture governing the Exchange Notes and Private Exchange Notes (if
any).
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in which
securities of the Issuer are sold to an underwriter for reoffering to the
public.
2. EXCHANGE OFFER
(a) Unless the Exchange Offer would not be permitted by applicable laws or
a policy of the SEC, the Issuer shall (i) prepare and file with the
SEC by the Filing Date, a registration statement (the "Exchange
Registration Statement") on an appropriate form under the Securities
Act with respect to an offer (the "Exchange Offer") to the Holders of
Notes to issue and deliver to such Holders, in exchange for the Notes,
a like number of Exchange Notes, (ii) use its reasonable best efforts
to cause the Exchange Registration Statement to become effective by
the Effectiveness Date, (iii) use its reasonable best efforts to keep
the Exchange Registration Statement effective for not less than 20
Business Days after the Exchange Registration Statement is declared
effective, and (iv) use its reasonable best efforts to issue on or
prior to 30 days after the date on which the Exchange Registration
Statement is declared effective, Exchange Notes 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 the Exchange
Offer does not violate applicable law or any applicable interpretation
of the staff of the SEC.
(b) The Exchange Notes shall be issued under, and entitled to the benefits
of, (i) the Indenture or a trust indenture that is identical to the
Indenture (other than such changes as are necessary to comply with any
requirements of the SEC to effect or maintain the qualifications
thereof under the TIA) and (ii) the Collateral Agreements.
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue
from the last interest payment date on which interest was paid on the
Notes surrendered in exchange therefor or, if no interest has been
paid on the Notes, from the date of
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original issue of the Notes. Each Exchange Note and Private Exchange
Note shall bear interest at the rate set forth thereon; provided, that
interest with respect to the period prior to the issuance thereof
shall accrue at the rate or rates borne by the Notes from time to time
during such period.
(d) The Issuer may require each Holder as a condition to participation in
the Exchange Offer to represent (i) that any Exchange Notes received
by it will be acquired in the ordinary course of its business, (ii)
that at the time of the commencement and consummation of the Exchange
Offer such Holder has not entered into any arrangement or
understanding with any Person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Notes in
violation of the provisions of the Securities Act, (iii) that if such
Holder is an "affiliate" of the Issuer within the meaning of Rule 405
of the Securities Act, it will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent
applicable to it, (iv) 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 Notes and (v) if such Holder is a Participating Broker-Dealer,
that it will deliver a Prospectus in connection with any resale of the
Exchange Notes.
(e) The Issuer shall include within the Prospectus contained in the
Exchange Registration Statement a section entitled "Plan of
Distribution" which shall contain a summary statement of the positions
taken or policies made by the staff of the SEC with respect to the
potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Notes received by such broker-dealer in the Exchange Offer
for its own account in exchange for Notes that were acquired by it as
a result of market-making or other trading activity (a "Participating
Broker-Dealer"), whether such positions or policies have been publicly
disseminated by the staff of the SEC or such positions or policies, in
the judgment of the Initial Purchaser, represent the prevailing views
of the staff of the SEC. Such "Plan of Distribution" section shall
also allow, to the extent permitted by applicable policies and
regulations of the SEC, the use of the Prospectus by all Persons
subject to the prospectus delivery requirements of the Securities Act,
including, to the extent so permitted, all Participating
Broker-Dealers, and include a statement describing the manner in which
Participating Broker-Dealers may resell the Exchange Notes. The Issuer
shall use its reasonable best efforts to keep the Exchange
Registration Statement effective and to amend and supplement the
Prospectus contained therein, in order to permit such Prospectus to be
lawfully delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such
Persons must comply with such requirements in order to resell the
Exchange Notes (the "Applicable Period").
(f) If, upon consummation of the Exchange Offer, the Initial Purchaser
holds any Notes acquired by it and having the status of an unsold
allotment in the initial distribution, the Issuer (upon the written
request from the Initial Purchaser) shall, simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, issue and
deliver to the Initial Purchaser, in exchange (the "Private Exchange")
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for the Notes held by the Initial Purchaser, a like principal amount
of Exchange Notes that are identical to the Notes, except for the
existence of restrictions on transfer thereof under the Securities Act
and securities laws of the several states of the United States (the
"Private Exchange Notes") (and which are issued pursuant to the same
indenture as the Exchange Notes). The Private Exchange Notes shall
bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Registration Statement, together with an appropriate
letter of transmittal that is an exhibit to the Exchange Offer
Registration Statement, and any related documents;
(ii) keep the Exchange Offer open for not less than 20 Business Days
after the date on which the Exchange Registration Statement is
declared effective;
(iii) utilize the services of a depository for the Exchange Offer with
an address in the Borough of Manhattan, the City of New York,
which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable 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 applicable
laws.
(h) As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Registrable Notes validly tendered
pursuant to the Exchange Offer or the Private Exchange, as the
case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Notes so
accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each
Holder tendering such Registrable Notes, Exchange Notes or
Private Exchange Notes, as the case may be, equal in principal
amount to the Notes of such Holder so accepted for exchange.
(i) The Exchange Notes and the Private Exchange Notes may be issued under
(i) the Indenture or (ii) an indenture identical to the Indenture
(other than such changes as are necessary to comply with any
requirements of the SEC to effect or maintain the qualification
thereof under the TIA), which in either event will provide that the
Exchange Notes will not be subject to the transfer restrictions set
forth in the Indenture, and that the Exchange Notes, the Private
Exchange Notes and the
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Notes, if any, will be deemed one class of security (subject to the
provisions of the Indenture) and entitled to participate in all the
respective security granted by the Issuer pursuant to the Collateral
Agreements (as such term is defined in the Indenture) on an equal and
ratable basis.
(j) If: (i) applicable interpretations of the staff of the SEC would not
permit the consummation of the Exchange Offer; (ii) subsequent to the
consummation of the Private Exchange, any Holder of Private Exchange
Notes so requests; (iii) the Exchange Offer is not consummated by the
210th day following the Closing Date; or (iv) (A) any Holder is
prohibited by law or Commission policy form participating in the
Exchange Offer, (B) if the Initial Purchaser so requests with respect
to Notes not eligible to be exchanged for Exchange Notes in the
Exchange Offer, (C) any Holder participating in the Exchange Offer
receives Exchange Notes 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 Issuer within the meaning of the
Securities Act) or (D) any broker-dealer holds Notes acquired directly
from the Issuer or any of its affiliates and, in each such case
contemplated by this clause (iv), such Holder notifies the Issuer
within six months of consummation of the Exchange Offer, then the
Issuer shall promptly (and in any event within five Business Days)
deliver to the Holders (or in the case of an occurrence of any event
described in clause (iv) of this Section 2(j), to any such Holder) and
the Trustee written notice thereof (the "Shelf Notice") and shall
promptly (but in no event later than the Shelf Filing Date) file an
Initial Shelf Registration pursuant to Section 3.
3. SHELF REGISTRATION
If a Shelf Notice is delivered pursuant to Section 2(j), then this Section
3 shall apply to all Registrable Notes. Otherwise, upon consummation of the
Exchange Offer in accordance with Section 2, the provisions of this Section 3
shall apply solely with respect to (i) Notes held by any Holder thereof not
permitted to participate in the Exchange Offer, (ii) Notes held by any
broker-dealer that acquired such Notes directly from the Issuer or any of its
affiliates and (iii) Exchange Notes that are not freely tradeable as
contemplated by Section 2(j)(iv) hereof, provided in each case that the relevant
Holder has duly notified the Issuer within six months of the Exchange Offer as
required by Section 2(j)(iv).
(a) Initial Shelf Registration. The Issuer shall promptly file with the
SEC a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Registrable
Notes (the "Initial Shelf Registration"). If the Issuer has not yet
filed an Exchange Registration Statement, the Issuer shall file with
the SEC the Initial Shelf Registration on or prior to the Filing Date
and shall use its reasonable best efforts to cause such Initial Shelf
Registration to be declared effective under the Securities Act on or
prior to the Effectiveness Date. Otherwise, the Issuer shall use its
reasonable best efforts to file with the SEC the Initial Shelf
Registration within 30 days of the delivery of the Shelf Notice and
shall use its reasonable best efforts to cause such Shelf Registration
to be declared effective under the Securities Act as promptly as
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practicable thereafter (but in no event more than 90 days after
delivery of the Shelf Notice). The Initial Shelf Registration shall be
on Form S-1 or another appropriate form permitting registration of
such Registrable Notes for resale by Holders in the manner or manners
reasonably designated by them (including, without limitation, one or
more underwritten offerings). The Issuer shall not permit any
securities other than the Registrable Notes to be included in any
Shelf Registration. The Issuer shall use its reasonable best efforts
to keep the Initial Shelf Registration continuously effective under
the Securities Act until the date which is 24 months from the Closing
Date (subject to extension pursuant to the last paragraph of Section
6(v) (the "Effectiveness Period"), or such shorter period ending when
(i) all Registrable Notes covered by the Initial Shelf Registration
have been sold in the manner set forth and as contemplated in the
Initial Shelf Registration, (ii) a Subsequent Shelf Registration
covering all of the Registrable Notes covered by and not sold under
the Initial Shelf Registration or an earlier Subsequent Shelf
Registration has been declared effective under the Securities Act or
(iii) there cease to be any outstanding Registrable Notes.
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration or
any Subsequent Shelf Registration (as defined below) 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 Issuer shall use its reasonable best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness
thereof, and in any event shall within 30 days of such cessation of
effectiveness amend such Shelf Registration in a manner designed to
obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional "shelf" Registration Statement pursuant
to Rule 415 covering all of the Registrable Notes (a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, the
Issuer shall use its reasonable 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 or any Subsequent Shelf Registration
was previously effective. As used herein the term "Shelf Registration"
means the Initial Shelf Registration and any Subsequent Shelf
Registrations
(c) Supplements and Amendments. The Issuer shall promptly supplement and
amend any Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if requested in
writing by the Holders of a majority in aggregate principal amount of
the Registrable Notes covered by such Shelf Registration or if
reasonably requested by any underwriter of such Registrable Notes.
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4. ADDITIONAL INTEREST
(a) The Issuer acknowledges and agrees that the Holders of Registrable
Notes will suffer damages if the Issuer fails to fulfill its material
obligations under Section 2 or Section 3 hereof and that it would not
be feasible to ascertain the extent of such damages with precision.
Accordingly, the Issuer agrees to pay additional cash interest on the
Notes ("Additional Interest") under the circumstances and to the
extent set forth below (each of which shall be given independent
effect):
(i) if neither the Exchange Registration Statement nor the Initial
Shelf Registration has been filed on or prior to the Filing Date,
Additional Interest shall accrue on the Notes over and above any
stated interest at a rate of 0.25% per annum of the principal
amount of such Notes for the first 90 days immediately following
the Filing Date, such Additional Interest rate increasing by an
additional 0.25% per annum at the beginning of each subsequent
90-day period;
(ii) if neither the Exchange Registration Statement nor the Initial
Shelf Registration is declared effective on or prior to the
Effectiveness Date, Additional Interest shall accrue on the Notes
over and above any stated interest at a rate of 0.25% per annum
of the principal amount of such Notes for the first 90 days
immediately following the Effectiveness Date, such Additional
Interest rate increasing by an additional 0.25% per annum at the
beginning of each subsequent 90-day period;
(iii) if (A) the Issuer has not exchanged Exchange Notes for all Notes
validly tendered in accordance with the terms of the Exchange
Offer on or prior to 30 days after the Effectiveness Date, (B)
the Exchange Registration Statement ceases to be effective at any
time prior to the expiration of 20 Business Days thereafter, (C)
if applicable, a Shelf Registration has been declared effective
and such Shelf Registration ceases to be effective at any time
prior to the second anniversary of its effective date (other than
such time as all Notes have been disposed of thereunder) and is
not declared effective again within 30 days, or (D) pending the
announcement of a material corporate transaction, the Issuer
issues a written notice pursuant to Section 6(e)(v) or (vi) that
a Shelf Registration Statement or Exchange Registration Statement
is unusable and the aggregate number of days in any 365-day
period for which all such notices issued or required to be
issued, have been, or were required to be, in effect exceeds 120
days in the aggregate or 30 days consecutively, in the case of a
Shelf Registration statement, or 15 days in the aggregate in the
case of an Exchange Registration Statement, then Additional
Interest shall accrue on the Notes, over and above any stated
interest, at a rate of 0.25% per annum of the principal amount of
such Notes commencing on (w) the 31st day after the Effectiveness
Date, in the case of clause (A) above, or (x) the date the
Exchange Registration Statement ceases to be effective without
being declared effective again within 30 days, in the case of
clause (B) above, or
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(y) the day such Shelf Registration ceases to be effective in the
case of clause (C) above, or (z) the day the Exchange
Registration Statement or Shelf Registration ceases to be usable
in case of clause (D) above, such Additional Interest rate
increasing by an additional 0.25% per annum at the beginning of
each such subsequent 90-day period;
provided, however, that the maximum Additional Interest rate on the
Notes may not exceed at any one time in the aggregate 1.00% per annum;
and provided further, that (1) upon the filing of the Exchange
Registration Statement or Initial Shelf Registration (in the case of
clause (i) above), (2) upon the effectiveness of the Exchange
Registration Statement or Initial Shelf Registration (in the case of
clause (ii) above), or (3) upon the exchange of Exchange Notes for all
Notes tendered (in the case of clause (iii)(A) above), or upon the
effectiveness of the Exchange Registration Statement that had ceased
to remain effective (in the case of clause (iii)(B) above), or upon
the effectiveness of a Shelf Registration which had ceased to remain
effective (in the case of clause (iii)(C) above), Additional Interest
on the Notes as a result of such clause (or the relevant subclause
thereof) or upon the effectiveness of such Registration Statement or
Exchange Registration Statement (in the case of clause (iii)(D)
above), as the case may be, shall cease to accrue.
(b) The Issuer shall notify the Trustee within 5 Business Days after each
and every date on which an event occurs in respect of which Additional
Interest is required to be paid (an "Event Date"). Any amounts of
Additional Interest due pursuant to clause (a)(i), (a)(ii) or (a)(iii)
of this Section 4 will be payable in cash or in PIK Notes, on the
dates and in the manner provided in the Indenture and whether or not
any cash interest would then be payable on such date, commencing with
the first such semi-annual date occurring after any such Additional
Interest commences to accrue. The amount of Additional Interest will
be determined by multiplying the applicable Additional Interest rate
by the principal amount of the Notes, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate
was applicable during such period (determined on the basis of a
360-day year comprised of twelve 30-day months and, in the case of a
partial month, the actual number of days elapsed), and the denominator
of which is 360.
5. HOLD-BACK AGREEMENTS
The Issuer agrees that it will not effect any public or private sale or
distribution (including a sale pursuant to Regulation D under the Securities
Act) of any securities the same as or similar to those covered by a Registration
Statement filed pursuant to Section 2 or 3 hereof (other than Additional Notes
(as defined in the Indenture) issued under the Indenture), or any securities
convertible into or exchangeable or exercisable for such securities, during the
10 days prior to, and during the 90-day period beginning on, the effective date
of any Registration Statement filed pursuant to Sections 2 and 3 hereof unless
the Holders of a majority in the aggregate principal amount of the Registrable
Notes to be included in such Registration Statement consent, if the managing
underwriter thereof so requests in writing.
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6. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement pursuant to
Sections 2 or 3 hereof, the Issuer shall effect such registrations to permit the
sale of such securities covered thereby in accordance with the intended method
or methods of disposition thereof, and pursuant thereto and in connection with
any Registration Statement filed by the Issuer hereunder, the Issuer shall:
(a) Prepare and file with the SEC on or prior to the Filing Date, the
Exchange Registration Statement or if the Exchange Registration
Statement is not filed because of the circumstances contemplated by
Section 2(j), a Shelf Registration as prescribed by Section 3, and use
its reasonable best efforts to cause each such Registration Statement
to become effective and remain effective as provided herein; provided
that, if (1) a Shelf Registration is filed pursuant to Section 3 or
(2) a Prospectus contained in an Exchange 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
Notes during the Applicable Period relating thereto, before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto the Issuer shall, if requested, furnish to and afford the
Holders of the Registrable Notes to be registered pursuant to such
Shelf Registration Statement, each Participating Broker-Dealer, the
managing underwriters, if any, and each of their respective 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 (in each case
at least 5 Business Days prior to such filing). The Issuer shall not
file any such Registration Statement or Prospectus or any amendments
or supplements thereto in respect of which the Holders must provide
information for the inclusion therein without the Holders being
afforded an opportunity to review such documentation if the holders of
a majority in aggregate principal amount of the Registrable Notes
covered by such Registration Statement, or any such Participating
Broker-Dealer, as the case may be, the managing underwriters, if any,
or any of their respective counsel shall reasonably object in writing
on a timely basis. A Holder shall be deemed to have reasonably
objected to such filing if such Registration Statement, amendment,
Prospectus or supplement, as applicable, as proposed to be filed,
contains an untrue statement of a material fact or omits to state any
material fact necessary to make the statements therein not misleading
or fails to comply with the applicable requirements of the Securities
Act.
(b) Provide an indenture trustee for the Registrable Notes, the Exchange
Notes or the Private Exchange Notes, as the case may be, and cause the
Indenture (or other indenture relating to the Registrable Notes) to be
qualified under the TIA not later than the effective date of the first
Registration Statement; and in connection therewith, 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 reasonable best efforts to cause such trustee to execute, all
documents as may be required to effect such changes, and all other
forms and documents
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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 pre-effective amendments and
post-effective amendments to each Shelf Registration or Exchange
Registration Statement, as the case may be, as may be necessary to
keep such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the case may be;
cause the related Prospectus to be supplemented by any Prospectus
supplement required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with the provisions
of the Securities Act and the Exchange Act applicable to them with
respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so
supplemented and with respect to the subsequent resale of any
securities being sold by a Participating Broker-Dealer covered by any
such Prospectus. The Issuer shall not, during the Applicable Period,
voluntarily and knowingly take any action that would result in selling
Holders of the Registrable Notes covered by a Registration Statement
or Participating Broker-Dealers seeking to sell Exchange Notes not
being able to sell such Registrable Notes or such Exchange Notes
during that period, unless such action, in the reasonable judgment of
the Issuer, is required by applicable law, rule or regulation or
permitted by this Agreement.
(d) Furnish to such selling Holders and Participating Broker-Dealers who
so request in writing (i) upon the Issuer's receipt, a copy of the
order of the SEC declaring such Registration Statement and any
post-effective amendment thereto effective, (ii) such reasonable
number of copies of the Prospectus included in such Registration
Statement (including each preliminary Prospectus) and each amendment
and supplement thereto, and such reasonable number of copies of the
final Prospectus as filed by the Issuer pursuant to Rule 424(b) under
the Securities Act, in conformity with the requirements of the
Securities Act and each amendment and supplement thereto, and (iii)
such other documents (including any amendments required to be filed
pursuant to clause (c) of this Section), as any such Person may
reasonably request in writing. The Issuer hereby consents to the use
of the Prospectus by each of the selling Holders of Registrable Notes
or each such Participating Broker-Dealer, as the case may be, and the
underwriters or agents, if any, and dealers, if any, in connection
with the offering and sale of the Registrable Notes covered by, or the
sale by Participating Broker-Dealers of the Exchange Notes pursuant
to, such Prospectus and any amendment or supplement thereto.
(e) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange 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
Notes during the Applicable Period relating thereto, the Issuer shall
notify in writing the selling Holders of Registrable Notes, or each
such Participating Broker-Dealer, as the case may be, the managing
12
underwriters, if any, and each of their respective counsel promptly
(but in any event within 2 Business Days) (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to a Registration Statement or any post-effective
amendment, when the same has become effective, (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 the
Registrable Notes the representations and warranties of the Issuer
contained in any agreement (including any underwriting agreement)
contemplated by Section 6(n) hereof cease to be true and correct in
all material respects, (iv) of the receipt by the Issuer of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction, or
the initiation or threatening of any proceeding for such purpose, (v)
of the happening of any event, the existence of any condition of any
information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in,
or amendments or supplements to, such Registration Statement,
Prospectus or documents so that, in the case of the Registration
Statement and the Prospectus, it will not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, (vi)
of any reasonable determination by the Issuer that a post-effective
amendment to a Registration Statement would be appropriate and (vii)
of any request by the SEC for amendments to the Registration Statement
or supplements to the Prospectus or for additional information
relating thereto.
(f) Use its reasonable best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of a Prospectus or suspending
the qualification (or exemption from qualification) of any of the
Registrable Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer, for sale in any jurisdiction, and, if any
such order is issued, to use its reasonable best efforts to obtain the
withdrawal of any such order at the earliest possible date.
(g) If (A) a Shelf Registration is filed pursuant to Section 3, (B) a
Prospectus contained in an Exchange 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
Notes during the Applicable Period or (C) reasonably requested in
writing by the managing underwriters, if any, or the Holders of a
majority in aggregate principal amount of the Registrable Notes being
sold in connection with an underwritten offering, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment
such information or revisions to information therein relating to such
underwriters or selling Holders as
13
the managing underwriters, if any, or such Holders or any of their
respective counsel reasonably request in writing to be included or
made therein, and reasonably acceptable to the Issuer and (ii) make
all required filings of such Prospectus supplement or such
post-effective amendment as soon as practicable after the Issuer has
received notification of the matters to be incorporated in such
Prospectus supplements or post-effective amendment.
(h) Prior to any public offering of Registrable Notes or any delivery of a
Prospectus contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, use its reasonable best efforts to register or
qualify, and to cooperate with the selling Holders of Registrable
Notes or each such Participating Broker-Dealer, as the case may be,
the underwriters, if any, and their respective counsel in connection
with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Notes or Exchange
Notes, as the case may be, for offer and sale under the securities or
Blue Sky laws of such jurisdictions within the United States as any
selling Holder, Participating Broker-Dealer or any managing
underwriter or underwriters, if any, reasonably request in writing;
provided that where Exchange Notes held by Participating
Broker-Dealers or Registrable Notes are offered other than through an
underwritten offering, the Issuer agrees to cause its counsel to
perform Blue Sky investigations and use its reasonable best efforts to
file any registrations and qualifications required to be filed
pursuant to this Section 6(h), use its reasonable best efforts to keep
each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to
be kept effective and use its reasonable best efforts to do any and
all other acts or things reasonably necessary or advisable to enable
the disposition in such jurisdictions of the Exchange Notes held by
Participating Broker-Dealers or the Registrable Notes covered by the
applicable Registration Statement; provided that the Issuer shall not
be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action
that would subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) subject itself to
taxation in any such jurisdiction where it is not then so subject.
(i) If (A) a Shelf Registration is filed pursuant to Section 3 or (B) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is requested to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, cooperate in all
reasonable respects with the selling Holders of Registrable Notes and
the managing underwriter or underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing
Registrable Notes to be sold, which certificates shall not bear any
restrictive legends and shall be in a form eligible for deposit with
The Depository Trust Company, and enable such Registrable Notes to be
in such denominations and registered in such names as the managing
underwriter or underwriters, if any, or Holders may reasonably
request.
14
(j) Use its reasonable best efforts to cause the Registrable Notes covered
by any Registration Statement to be registered with or approved by
such governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof or the underwriter, if any, to
consummate the disposition of such Registrable Notes, except as may be
required solely as a consequence of the nature of such selling
Holder's business, in which case the Issuer shall cooperate in all
reasonable respects with the filing of such Registration Statement and
the granting of such approvals; provided that the Issuer shall not be
required to (A) qualify generally to do business in any jurisdiction
where it is not then so qualified, (B) take any action that would
subject it to general service of process in any jurisdiction where it
is not then so subject or (C) subject itself to taxation in any such
jurisdiction where it is not then so subject.
(k) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange 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
Notes during the Applicable Period, upon the occurrence of any event
contemplated by paragraph 6(e)(v) or 6(e)(vi) hereof, as promptly as
practicable, prepare and file with the SEC, at the expense of the
Issuer, a supplement or post-effective amendment to the Registration
Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or
file any other required document so that, as thereafter delivered to
the purchasers of the Registrable Notes being sold thereunder or to
the purchasers of the Exchange Notes to whom such Prospectus will be
delivered by a Participating Broker-Dealer, 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, and, if SEC review is required, use its
reasonable best efforts to cause such post-effective amendment to be
declared effective as soon as possible.
(l) Use its reasonable best efforts to cause the Registrable Notes covered
by a Registration Statement to be rated with such appropriate rating
agencies, if so requested in writing by the Holders of a majority in
aggregate principal amount of the Registrable Notes covered by such
Registration Statement or the managing underwriter or underwriters, if
any.
(m) Prior to the initial issuance of the Exchange Notes, (i) provide the
Trustee with one or more certificates for the Registrable Notes in a
form eligible for deposit with The Depository Trust Company and (ii)
provide a CUSIP number for the Exchange Notes.
(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 of debt
securities similar to the Notes, as may be appropriate in the
circumstances) and take all such other actions in connection therewith
(including those reasonably requested in writing by the managing
15
underwriters, if any, or the Holders of a majority in aggregate
principal amount of the Registrable Notes being sold) in order to
expedite or facilitate the registration or the disposition of such
Registrable Notes, 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 Issuer and its subsidiaries
as then conducted, 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 underwriters in underwritten offerings
of debt securities similar to the Notes, as may be appropriate and
reasonable in the circumstances, and confirm the same if and when
reasonably required; (ii) use reasonable best efforts to obtain an
opinion of counsel to the Issuer 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 aggregate principal amount of the Registrable Notes
being sold), addressed to each selling Holder and each of the
underwriters, if any, covering the matters customarily covered in
opinions of counsel to the Issuer requested in underwritten offerings
of debt securities similar to the Notes, as may be appropriate in the
circumstances; (iii) use reasonable 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 Issuer (and, if necessary, any other independent
certified public accountants of any subsidiary of the Issuer or of any
business acquired by the Issuer for which financial statements and
financial data are, or are required to be, included in the
Registration Statement), addressed to each of the underwriters, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings of debt securities similar to the Notes, as may
be appropriate in the circumstances, and such other matters as
reasonably requested in writing by the underwriters; and (iv) deliver
such documents and certificates as may be reasonably requested in
writing by the Holders of a majority in aggregate principal amount of
the Registrable Notes being sold and the managing underwriters, if
any, to evidence the continued validity in all material respects of
the representations and warranties of the Issuer and its subsidiaries
made pursuant to clause (i) above and to evidence compliance in all
material respects with any conditions contained in the underwriting
agreement or other similar agreement entered into by the Issuer.
(o) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange 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
Notes during the Applicable Period, make available for inspection by
any selling Holder of such Registrable Notes being sold, or each such
Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Notes, if any,
and any attorney, accountant or other agent retained by any such
selling Holder or
16
each such Participating Broker-Dealer, as the case may be, or
underwriter (collectively, the "Inspectors"), at the offices where
normally kept, during reasonable business hours and in a manner so as
not to be disruptive to the business or operations of the Issuer, all
financial and other records and pertinent corporate documents of the
Issuer and its subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and
employees of the Issuer and its subsidiaries to supply all information
reasonably requested in writing by any such Inspector in connection
with such Registration Statement. Each Inspector shall agree in
writing, in a form reasonably acceptable to the Issuer, that it will
keep the Records confidential and not disclose any of the Records
unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such Registration Statement,
(ii) the release of such Records is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction, (iii) the
information in such Records is public or has been made generally
available to the public other than as a result of a disclosure or
failure to safeguard by such Inspector or (iv) disclosure of such
information is, in the reasonable written opinion of counsel for any
Inspector, necessary or advisable in connection with any action,
claim, suit or proceeding, directly or indirectly, involving or
potentially involving such Inspector and arising out of, based upon,
related to, or involving this Agreement, or any transaction
contemplated hereby or arising hereunder. Each selling Holder of such
Registrable Notes and each such Participating Broker-Dealer will be
required to agree that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it
as the basis for any market transactions in the securities of the
Issuer unless and until such is made generally available to the
public. Each Inspector, each selling Holder of such Registrable Notes
and each such Participating Broker-Dealer will be required to further
agree that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to the Issuer
and, to the extent practicable, use its best efforts to allow the
Issuer, at its expense, to undertake appropriate action to prevent
disclosure of the Records deemed confidential at its expense.
(p) Comply with all applicable rules and regulations of the SEC and make
generally available to the security holders of the Issuer with regard
to any Applicable Registration Statement earning 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 at the end of any fiscal quarter in which Registrable
Notes are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of
the Issuer after the effective date of a Registration Statement, which
statements shall cover said 12-month periods.
17
(q) Upon consummation of an Exchange Offer or Private Exchange, use
reasonable best efforts to obtain an opinion of counsel to the Issuer
(in form, scope and substance reasonably satisfactory to the Initial
Purchaser), 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 Issuer has duly authorized,
executed and delivered the Exchange Notes or the Private Exchange
Notes, as the case may be, and the Indenture, (ii) the Exchange Notes
or the Private Exchange Notes, as the case may be, and the Indenture
constitute legal, valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance with their respective
terms, except as such enforcement may be subject to customary United
States and foreign exceptions and (iii) all obligations of the Issuer
under the Exchange Notes or the Private Exchange Notes, as the case
may be, and the Indenture are secured by Liens (as defined in the
Indenture) on the assets securing the obligations of the Issuer under
the Notes, Indenture and Collateral Agreements subject to customary
assumptions, reliances, exceptions and exclusions.
(r) If the Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Registrable Notes by the Holders to the Issuer (or to
such other Person as directed by the Issuer) in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be, the
Issuer shall mark, or cause to be marked, on such Registrable Notes
that the Exchange Notes or the Private Exchange Notes, as the case may
be, are being issued as substitute evidence of the indebtedness
originally evidenced by the Registrable Notes; provided that in no
event shall such Registrable Notes be marked as paid or otherwise
satisfied.
(s) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Notes and their respective counsel
in connection with any filings required to be made with the NASD.
(t) Use its reasonable best efforts to take all other steps reasonably
necessary to effect the registration of the Registrable Notes covered
by a Registration Statement contemplated hereby.
(u) The Issuer may require each seller of Registrable Notes or
Participating Broker-Dealer as to which any registration is being
effected to furnish to the Issuer such information regarding such
seller or Participating Broker-Dealer and the distribution of such
Registrable Notes as the Issuer may, from time to time, reasonably
request in writing. The Issuer may exclude from such registration the
Registrable Notes of any seller who fails to furnish such information
within a reasonable time (which time in no event shall exceed 15 days)
after receiving such request. Each seller of Registrable Notes or
Participating Broker-Dealer as to which any registration is being
effected agrees to furnish promptly to the Issuer all information
required to be disclosed in order to make the information previously
furnished by such seller not materially misleading.
18
(v) Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or Exchange Notes to
be sold by such Participating Broker-Dealer, as the case may be, that,
upon receipt of any notice from the Issuer 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 of such
Registrable Notes covered by a Registration Statement and such
Participating Broker-Dealer will forthwith discontinue disposition of
such Exchange Notes pursuant to any Prospectus and, in each case,
forthwith discontinue dissemination of such Prospectus until such
Holder's or Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(k), or
until it is advised in writing (the "Advice") by the Issuer that the
use of the applicable Prospectus may be resumed, and has received
copies of any amendments or supplements thereto and, if so directed by
the Issuer, such Holder or Participating Broker-Dealer, as the case
may be, will deliver to the Issuer all copies, other than permanent
file copies, then in such Holder's or Participating Broker-Dealer's
possession, of the Prospectus covering such Registrable Notes current
at the time of the receipt of such notice. In the event the Issuer
shall give any such notice, 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
Participating Broker-Dealer shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 6(k) or (y)
the Advice.
7. REGISTRATION EXPENSES
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuer shall be borne by the Issuer,
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 in connection with any
underwritten offering and (B) fees and expenses of compliance with
state securities or Blue Sky laws as provided in Section 6(h) hereof,
(ii) printing expenses, including, without limitation, expenses of
printing Prospectuses if the printing of Prospectuses is requested by
the managing underwriter or underwriters, if any, or by the Holders of
a majority in aggregate principal amount of the Registrable Notes
included in any Registration Statement or by any Participating
Broker-Dealer during the Applicable Period, as the case may be, (iii)
messenger, telephone and delivery expenses incurred in connection with
the performance of its obligations hereunder, (iv) fees and
disbursements of counsel for the Issuer and, subject to Section 7(b),
the Holders, (v) fees and disbursements of all independent certified
public accountants referred to in Section 6 (including, without
limitation, the expenses of any special audit and "cold comfort"
letters required by or incident to such performance), (vi) rating
agency fees and the fees and expenses incurred in connection with the
listing of the Securities to be registered on any securities exchange,
(vii) Securities Act liability insurance, if the Issuer desires such
insurance, (viii) fees and expenses of all other Persons retained by
the Issuer, (ix) fees and expenses of any "qualified independent
19
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 Issuer, (x)
internal expenses of the Issuer (including, without limitation, all
salaries and expenses of officers and employees of the Issuer
performing legal or accounting duties), (xi) the expense of any annual
audit, (xii) the fees and expenses of the Trustee and the Exchange
Agent and (xiii) the expenses relating to printing, word processing
and distributing all Registration Statements, underwriting agreements,
securities sales agreements, indentures and any other documents
necessary in order to comply with this Agreement.
(b) The Issuer 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 Notes to be
included in any Registration Statement. The Issuer shall pay all
documentary, stamp, transfer or other transactional taxes attributable
to the issuance or delivery of the Exchange Notes or Private Exchange
Notes in exchange for the Notes; provided that the Issuer shall not be
required to pay taxes payable in respect of any transfer involved in
the issuance or delivery of any Exchange Note or Private Exchange Note
in a name other than that of the Holder of the Note in respect of
which such Exchange Note or Private Exchange Note is being issued. The
Issuer shall reimburse the Holders for fees and expenses (including
reasonable fees and expenses of counsel to the Holders) relating to
any enforcement of any rights of the Holders under this Agreement.
8. INDEMNIFICATION
(a) Indemnification by the Issuer. The Issuer agrees to indemnify and hold
harmless each Holder of Registrable Notes, Exchange Notes or Private
Exchange Notes and each Participating Broker-Dealer selling Exchange
Notes during the Applicable Period, each Person, if any, who controls
each such Holder (within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Exchange Act) and the officers, directors
and partners 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, reasonable costs of preparation and reasonable
attorneys' fees as provided in this Section 8) 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,
insofar as such Losses arise out of or are 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 light of the circumstances under which they were made, not
misleading, except insofar as such Losses are solely based upon
information relating to such Holder or Participating Broker-Dealer and
furnished in writing to
20
the Issuer (or reviewed and approved in writing) by such Holder or
Participating Broker-Dealer or their counsel expressly for use
therein; provided, however, that the Issuer will not be liable to any
Indemnified Party (as defined below) under this Section 8 to the
extent Losses were solely caused by an untrue statement or omission or
alleged untrue statement or omission that was contained or made in any
preliminary prospectus and corrected in the Prospectus or any
amendment or supplement thereto if (i) the Prospectus does not contain
any other untrue statement or omission or alleged untrue statement or
omission of a material fact that was the subject matter of the related
proceeding, (ii) any such Losses resulted from an action, claim or
suit by any Person who purchased Registrable Notes or Exchange Notes
which are the subject thereof from such Indemnified Party and (iii) it
is established in the related proceeding that such Indemnified Party
failed to deliver or provide a copy of the Prospectus (as amended or
supplemented) to such Person with or prior to the confirmation of the
sale of such Registrable Notes or Exchange Notes sold to such Person
if required by applicable law, unless such failure to deliver or
provide a copy of the Prospectus (as amended or supplemented) was a
result of noncompliance by the Issuer with Section 6 of this
Agreement. The Issuer also agrees to 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 5 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.
(b) Indemnification by Xxxxxx. 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 Issuer in writing such
information as the Issuer 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 indemnify and hold harmless the Issuer, its directors and each
Person, if any, who controls the Issuer (within the meaning of Section
15 of the Securities Act and Section 20(a) of the Exchange Act), and
the directors, officers and partners of such controlling persons, to
the fullest extent lawful, from and against all Losses insofar as such
Losses arise out of or are 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 losses are finally
judicially determined by a court of competent jurisdiction in a final,
unappealable order to have resulted solely from an untrue statement or
alleged untrue statement of a material fact or omission or alleged
omission of a material fact contained in or omitted from any
information so furnished in writing by such Holder to the Issuer
expressly for use therein. Notwithstanding the foregoing, in no event
shall
21
the liability of any selling Holder be greater in amount than such
Holder's Maximum Contribution Amount (as defined below).
(c) Conduct of Indemnification Proceedings. If any proceeding 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 Party" or "Indemnifying Parties", as applicable) in
writing; provided, 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.
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, at its
expense, the defense of any such proceeding, provided, 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 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 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
22
of such proceeding for which such Indemnified Party would be entitled to
indemnification hereunder (whether or not any Indemnified Party is a party
thereto).
(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,
in such proportion as is appropriate to reflect 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 legal or other fees or expenses
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 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), a selling Holder 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 Notes or Exchange Notes 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 or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 8(d) are several in proportion to the respective principal amount of the
Registrable Securities held by each Holder hereunder and not joint.
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.
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9. RULES 144 AND 144A
The Issuer 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 Issuer is not required to file such
reports, it will, upon the written request of any Holder of Registrable Notes,
make publicly available other information necessary to permit sales pursuant to
Rule 144 and 144A and (b) take such further action as any Holder may reasonably
request in writing, all to the extent required from time to time to enable such
Holder to sell Registrable Notes without registration under the Securities Act
pursuant to the exemptions provided by Rule 144 and Rule 144A. Upon the request
of any Holder, the Issuer shall deliver to such Holder a written statement as to
whether it has complied with such information and requirements.
10. UNDERWRITTEN REGISTRATIONS OF REGISTRABLE NOTES
If any of the Registrable Notes covered by any Shelf Registration is to be
sold in an underwritten offering, the investment banker or investment bankers
and manager or managers that will manage the offering will be selected by the
Holders of a majority in aggregate principal amount of such Registrable Notes
included in such offering; provided, however, that such investment banker or
investment bankers and manager or managers must be reasonably acceptable to the
Issuer.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Xxxxxx (a) agrees to sell such Xxxxxx's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
11. MISCELLANEOUS
(a) Remedies. In the event of a breach by the Issuer of any of its
obligations under this Agreement, each Holder, in addition to being
entitled to exercise all rights provided herein, in the Indenture or,
in the case of the Initial Purchaser, in the Purchase Agreement, or
granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Issuer
agrees that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by the Issuer 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, the Issuer shall waive the defense that a remedy at law would
be adequate.
(b) No Inconsistent Agreements. The Issuer has not entered, as of the date
hereof, and the Issuer shall not enter, after the date of this
Agreement, into any agreement with respect to any of its securities
that is inconsistent with the rights granted to the Holders of
Securities in this Agreement or otherwise conflicts with the
provisions hereof. The Issuer has not entered and will not enter into
any
24
agreement with respect to any of its securities that will grant to any
Person piggy-back rights with respect to a Registration Statement.
(c) Adjustments Affecting Registrable Notes. The Issuer shall not,
directly or indirectly, take any action with respect to the
Registrable Notes as a class that would adversely affect the ability
of the Holders to include such Registrable Notes in a registration
undertaken pursuant to this Agreement.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise than
with the prior written consent of the Holders of not less than a
majority in aggregate principal amount of the then outstanding
Registrable Notes in circumstances that would adversely affect any
Holders of Registrable Notes; provided, however, that Section 8 and
this Section 11(d) may not be amended, modified or supplemented
without the prior 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 of Registrable Notes whose securities are being tendered
pursuant to the Exchange Offer or sold pursuant to a Registration
Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable Notes
may be given by Holders of at least a majority in aggregate principal
amount of the Registrable Notes being tendered or being sold by such
Holders pursuant to such Registration Statement.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery,
registered first-class mail, next-day air courier or telecopier:
(i) if to a Holder of Securities or to any Participating
Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, set forth on the
records of the registrar of the Notes, with a copy in like manner
to the Initial Purchaser as follows:
Xxxxxxxxx & Company, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
with a copy to:
Mayer, Brown, Xxxx & Maw LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
25
(ii) if to the Initial Purchaser, at the address specified in Section
11(e)(i);
(iii) if to the Issuer, as follows:
PAHC Holdings Corporation
c/o Phibro Animal Health Corporation
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Legal Department
with a copy to:
Golenbock Xxxxxxx Xxxxx Bell & Peskoe LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxx, Esq.
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 United States mail, postage prepaid, if mailed, one
business day after being deposited in the United States mail, postage prepaid,
if mailed; one business day after being timely delivered to a next-day air
courier guaranteeing overnight delivery; 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
hereto, including, without limitation and without the need for an
express assignment, subsequent Holders of Securities.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning
hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAW. THE ISSUER HEREBY IRREVOCABLY SUBMITS
TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE
26
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 ITS AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. THE ISSUER 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 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 ISSUER
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 ISSUER 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 ISSUER 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 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) Securities Held by the Issuer or Its Affiliates. Whenever the consent
or approval of Holders of a specified percentage of Securities is
required hereunder, Securities held by the Issuer or its affiliates
(as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
(l) Third Party Beneficiaries. Holders and Participating Broker-Dealers
are intended third party beneficiaries of this Agreement and this
Agreement may be enforced by such Persons.
27
(m) Entire Agreement. This Agreement, together with the Purchase
Agreement, the Indenture and the Collateral Agreements, is intended by
the parties as a final and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter
contained herein and therein and any and all prior oral or written
agreements, representations, or warranties, contracts, understanding,
correspondence, conversations and memoranda between the Initial
Purchaser on the one hand and the Issuer on the other, or between or
among any agents, representatives, parents, subsidiaries, affiliates,
predecessors in interest or successors in interest with respect to the
subject matter hereof and thereof are merged herein and replaced
hereby.
28
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
PAHC HOLDINGS CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title President
ACCEPTED AND AGREED TO:
XXXXXXXXX & COMPANY, INC.
By: /s/ X. Xxxxx Xxxxxxx
---------------------------------
Name: X. Xxxxx Xxxxxxx
Title: Executive Vice President
REGISTRATION RIGHTS AGREEMENT
