Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
Dated as of October 8, 1998
by and among
NATIONAL VISION ASSOCIATES, LTD.,
THE GUARANTORS NAMED HEREIN
and
XXXXXXXX & CO. INC.,
NATIONSBANC XXXXXXXXXX SECURITIES LLC
and
FIRST UNION CAPITAL MARKETS
as Initial Purchasers
$125,000,000
12 3/4% Senior Notes due 2005
TABLE OF CONTENTS
Page
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1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Exchange Offer . . . . . . . . . . . . . . . . . . . . . . . . 6
3. Shelf Registration . . . . . . . . . . . . . . . . . . . . . . 11
4. Additional Interest . . . . . . . . . . . . . . . . . . . . . 13
5. Registration Procedures . . . . . . . . . . . . . . . . . . . 15
6. Registration Expenses . . . . . . . . . . . . . . . . . . . . 26
7. Indemnification . . . . . . . . . . . . . . . . . . . . . . . 27
8. Rules 144 and 144A . . . . . . . . . . . . . . . . . . . . . . 32
9. Underwritten Registrations . . . . . . . . . . . . . . . . . . 32
10. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . 33
(a) No Inconsistent Agreements . . . . . . . . . . . . . . . 33
(b) Adjustments Affecting Registrable Notes . . . . . . . . . 33
(c) Amendments and Waivers . . . . . . . . . . . . . . . . . 33
(d) Notices . . . . . . . . . . . . . . . . . . . . . . . . . 34
(e) Successors and Assigns . . . . . . . . . . . . . . . . . 34
(f) Counterparts . . . . . . . . . . . . . . . . . . . . . . 35
(g) Headings . . . . . . . . . . . . . . . . . . . . . . . . 35
(h) Governing Law . . . . . . . . . . . . . . . . . . . . . . 35
(i) Severability . . . . . . . . . . . . . . . . . . . . . . 35
(j) Securities Held by the Company or their
Affiliates . . . . . . . . . . . . . . . . . . . . . . 35
(k) Third Party Beneficiaries . . . . . . . . . . . . . . . . 36
(l) Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . 36
(m) Entire Agreement . . . . . . . . . . . . . . . . . . . . 00
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XXXXXXXXXXXX RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is
dated as of October 8, 1998, by and among NATIONAL VISION ASSOCIATES,
LTD., a Georgia corporation (the "Company"), the subsidiaries of the
Company listed on the signature pages hereto as guarantors (the
"Guarantors") and together with the Company (the "Issuers"), and
XXXXXXXX & CO. INC., NATIONSBANC XXXXXXXXXX SECURITIES LLC and FIRST
UNION CAPITAL MARKETS, a division of Wheat First Securities (the
"Initial Purchasers").
This Agreement is entered into in connection with the
Purchase Agreement, dated as of October 5, 1998, among the Company,
the Guarantors and the Initial Purchasers (the "Purchase Agreement"),
which provides for the sale by the Company to the Initial Purchasers
of $125,000,000 aggregate principal amount of the Company's 12 3/4%
Senior Notes due 2005, guaranteed on a senior basis by the Guarantors
(the "Notes"). In order to induce the Initial Purchasers to enter
into the Purchase Agreement, the Issuers have agreed to provide the
registration rights set forth in this Agreement for the benefit of the
Initial Purchasers and any subsequent holder or holders of the Notes.
The execution and delivery of this Agreement is a condition to the
Initial Purchasers' obligation to purchase the Notes under the
Purchase Agreement.
The parties hereby agree as follows:
Section 1. Definitions
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As used in this Agreement, the following terms shall have
the following meanings:
"ADDITIONAL INTEREST" shall have the meaning set forth in
Section 4(a) hereof.
"ADVICE" shall have the meaning set forth in Section 5
hereof.
"AGREEMENT" shall have the meaning set forth in the
introductory paragraphs hereto.
"APPLICABLE PERIOD" shall have the meaning set forth in
Section 2(b) hereof.
"BUSINESS DAY" shall mean a day that is not a Legal Holiday.
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"COMPANY" shall have the meaning set forth in the preamble
of this Agreement and shall also include the Company's permitted
successors and assigns.
"COMMISSION" shall mean the Securities and Exchange
Commission.
"EFFECTIVENESS DATE" shall mean, (i) with respect to the
Exchange Offer Registration Statement, the 180th day after the Issue
Date and (ii) with respect to any other Registration Statement, the
60th day after the Filing Date with respect thereto.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in
Section 3(a) hereof.
"EVENT DATE" shall have the meaning set forth in Section
4(b) hereof.
"EXCHANGE ACT" shall mean Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission
promulgated thereunder.
"EXCHANGE NOTES" shall have the meaning set forth in Section
2(a) hereof.
"EXCHANGE OFFER" shall have the meaning set forth in Section
2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall have the
meaning set forth in Section 2(a) hereof.
"FILING DATE" shall mean, (A) if no Registration Statement
has been filed by the Issuers pursuant to this Agreement, the 120th
day after the Issue Date; provided, however, that if a Shelf Filing
Event shall have occurred within 10 days of the Filing Date, then the
Filing Date with respect to the Initial Shelf Registration shall be
the 30th calendar day after the occurrence of the Shelf Filing Event;
and (B) in each other case (which may be applicable notwithstanding
the consummation of the Exchange Offer), the 120th day after the
occurrence of the Shelf Filing Event.
"HOLDER" shall mean any holder of a Registrable Note or
Registrable Notes.
"INDEMNIFIED PERSON" shall have the meaning set forth in
Section 7(c) hereof.
"INDEMNIFYING PERSON" shall have the meaning set forth in
Section 7(c) hereof.
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"INDENTURE" shall mean the Indenture, dated as of October 8,
1998, by and among the Company, the Guarantors and State Street Bank
and Trust Company, 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 PURCHASERS" shall have the meaning set forth in the
preamble hereof.
"INITIAL SHELF REGISTRATION" shall have the meaning set
forth in Section 3(a) hereof.
"INSPECTORS" shall have the meaning set forth in Section
5(n) hereof.
"ISSUE DATE" shall mean October 8, 1998, the date of
original issuance of the Notes.
"ISSUERS" shall have the meaning set forth in the preamble
hereof.
"LEGAL HOLIDAY" shall mean a Saturday, a Sunday or a day on
which banking institutions in New York, New York are required by law,
regulation or executive order to remain closed.
"NASD" shall have the meaning set forth in Section 5(s)
hereof.
"NOTES" shall have the meaning set forth in the preamble
hereof.
"PARTICIPANT" shall have the meaning set forth in Section
7(a) hereof.
"PARTICIPATING BROKER-DEALER" shall mean 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 or any other person with similar prospectus delivery
requirements for use in connection with any resale of Exchange Notes.
"PERSON" shall mean an individual, trustee, corporation,
partnership, joint stock company, trust, unincorporated association,
union, business association, firm, government or agency or political
subdivision thereofor other legal entity.
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"PRIVATE EXCHANGE" shall have the meaning set forth in
Section 2(b) hereof.
"PRIVATE EXCHANGE NOTES" shall have the meaning set forth in
Section 2(b) hereof.
"PROSPECTUS" shall mean the prospectus included in any
Registration Statement (including, without limitation, any prospectus
subject to completion and a prospectus that includes any 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, 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" shall have the meaning set forth in the
introductory paragraphs hereof.
"RECORDS" shall have the meaning set forth in Section 5(n)
hereof.
"REGISTRABLE NOTES" shall mean each Note, upon original
issuance thereof and at all times subsequent thereto, each Exchange
Note as to which Section 2(c)(iv) hereof is applicable upon original
issuance and at all times subsequent thereto, and each Private
Exchange Note, upon original issuance thereof and at all times
subsequent thereto, until in the case of any such Note, Exchange Note
or Private Exchange Note, as the case may be, the earliest to occur of
(i) the date on which any such Note has been exchanged by a person
other than a Participating Broker-Dealer for an Exchange Note (other
than with respect to an Exchange Note as to which Section 2(c)(iv)
hereof applies) pursuant to the Exchange Offer, (ii) with respect to
Exchange Notes received by Participating Broker-Dealers in the
Exchange Offer, the earlier of (x) the date on which such Exchange
Note has been sold by such Participating Broker-Dealer by means of the
Prospectus contained in the Exchange Offer Registration Statement and
(y) the date on which the Exchange Offer Registration Statement has
been effective under the Securities Act for a period of 180 days after
the date that the Exchange Offer has been consummated, (iii) a Shelf
Registration covering such Note, Exchange Note or Private Exchange
Note has been declared effective by the Commission and such Note,
Exchange Note or Private Exchange Note, as the case may be, has been
disposed of in accordance with such effective Shelf Registration,
(iv) the date on which such Note, Exchange Note or Private Exchange
Note, as the case may be, is eligible for distribution to the public
without volume or manner of sale restrictions pursuant to Rule 144(k)
or (v) the date on which such Note, Exchange Note or Private Exchange
Note, as the case may be, ceases to be outstanding for purposes of the
Indenture or any other indenture under which such Exchange Note or
Private Exchange Note was issued.
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"REGISTRATION STATEMENT" shall mean any appropriate
registration statement of the Company and/or the Guarantors covering
any of the Registrable Notes pursuant to the provisions of this
Agreement, including, but not limited to, the Exchange Offer
Registration Statement, filed with the Commission under the Securities
Act, and all amendments and supplements to any such Registration
Statement, including post-effective amendments, in each case including
the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"RULE 144" shall mean 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 Commission 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 of such securities being
free of the registration and prospectus delivery requirements of the
Securities Act.
"RULE 144A" shall mean 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 Commission.
"RULE 415" shall mean 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 Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"SHELF FILING EVENT" shall have the meaning set forth in
Section 2(c) hereof.
"SHELF REGISTRATION" shall have the meaning set forth in
Section 3(b) hereof.
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"SUBSEQUENT SHELF REGISTRATION" shall have the meaning set
forth in Section 3(b) hereof.
"TIA" shall mean the Trust Indenture Act of 1939, as
amended.
"TRUSTEE" shall mean the trustee under the Indenture and the
trustee (if any) under any indenture governing the Exchange Notes and
Private Exchange Notes.
"UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING" shall
mean a registration in which securities of the Issuers are sold to an
underwriter for reoffering to the public.
Section 2. Exchange Offer
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(a) The Issuers shall file with the Commission, no later
than the Filing Date, a Registration Statement (the "EXCHANGE OFFER
REGISTRATION STATEMENT") on an appropriate registration form with
respect to a registered offer (the "EXCHANGE OFFER") to exchange any
and all of the Registrable Notes for a like aggregate principal amount
of notes, guaranteed on a senior basis by the Guarantors of the
Company (the "EXCHANGE NOTES"), that are identical in all material
respects to the Notes except that the Exchange Notes shall contain no
restrictive legend thereon. The Exchange Offer shall comply with all
applicable tender offer rules and regulations under the Exchange Act
and other applicable law. The Issuers shall use their best efforts to
(x) cause the Exchange Offer Registration Statement to be declared
effective under the Securities Act on or before the Effectiveness
Date; (y) keep the Exchange Offer open for at least 20 Business Days
(or longer if required by applicable law) after the date on which the
Exchange Offer Registration Statement is declared effective; and
(z) on or prior to the 30th day following the date on which the
Exchange Offer Registration Statement is declared effective by the
Commission, issue Exchange Notes for Notes tendered in the Exchange
Offer. If after the Exchange Offer Registration Statement is
initially declared effective by the Commission, the Exchange Offer or
the issuance of the Exchange Notes thereunder is interfered with by
any stop order, injunction or other order or requirement of the
Commission or any other governmental agency or court, the Exchange
Offer Registration Statement shall be deemed not to have become
effective for purposes of this Agreement.
Each Holder that participates in the Exchange Offer will be
required to represent to the Issuers in writing (which may be
contained in the applicable letter of transmittal) that (i) any
Exchange Notes to be received by it will be acquired in the ordinary
course of its business, (ii) such Holder will have no arrangement or
understanding with any Person to participate in the distribution of
the Exchange Notes in violation of the provisions of the Securities
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Act, (iii) that such Holder is not an affiliate of any of the Issuers
within the meaning of the Securities Act or, if such Holder is such an
affiliate, that it will comply with the registration and prospectus
delivery requirements of the Securities Act 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, a distribution of Exchange Notes and (v)
if such Holder is a broker-dealer that will receive Exchange Notes 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 in connection with any resale of such Exchange Notes.
Upon consummation of the Exchange Offer in accordance with
this Section 2, the provisions of this Agreement shall continue to
apply, mutatis mutandis, solely with respect to Registrable Notes that
are Private Exchange Notes, Exchange Notes as to which Section
2(c)(iv) is applicable and Exchange Notes held by Participating
Broker-Dealers (as defined), and the Issuers shall have no further
obligation to register Registrable Notes (other than Private Exchange
Notes and other than in respect of any Exchange Notes as to which
clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof.
No securities other than the Exchange Notes shall be
included in the Exchange Offer Registration Statement.
(b) The Issuers and the Initial Purchasers acknowledge that
the staff of the Commission has taken the position that any broker-
dealer that elects to exchange Notes that were acquired by such
broker-dealer for its own account as a result of market-making or
other trading activities for Exchange Notes in the Exchange Offer (a
"PARTICIPATING BROKER-DEALER") may be deemed to be an "underwriter"
within the meaning of the Securities Act and must deliver a prospectus
meeting the requirements of the Securities Act in connection with any
resale of such Exchange Notes (other than a resale of an unsold
allotment resulting from the original offering of the Notes).
The Issuers and the Initial Purchasers also acknowledge that
it is the Commission staff's position that if the Prospectus contained
in the Exchange Offer Registration Statement includes a plan of
distribution containing a statement to the above effect and the means
by which Participating Broker-Dealers may resell the Exchange Notes,
without naming the Participating Broker-Dealers or specifying the
amount of Exchange Notes owned by them, such Prospectus may be
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delivered by Participating Broker-Dealers to satisfy their prospectus
delivery obligations under the Securities Act in connection with
resales of Exchange Notes for their own accounts, so long as the
Prospectus otherwise meets the requirements of the Securities Act.
In light of the foregoing, if requested by a Participating
Broker-Dealer (a "REQUESTING PARTICIPATING BROKER-DEALER"), the
Issuers agree (w) to use their best efforts to keep the Exchange Offer
Registration Statement continuously effective for a period of up to
180 days after the date on which the Exchange Registration Statement
is declared effective, or such longer period if extended pursuant to
the last paragraph of Section 5 hereof (such period, the "APPLICABLE
PERIOD"), or such earlier date as all Requesting Participating Broker-
Dealers shall have notified the Issuers in writing that such
Requesting Participating Broker-Dealers have resold all Exchange Notes
acquired in the Exchange Offer, (x) to comply with the provisions of
Section 5 of this Agreement, as they relate to the Exchange Offer and
the Exchange Offer Registration Statement, (y) to deliver to such
Requesting Participating Broker-Dealer a "cold comfort" letter of the
independent public accountants of the Issuers and a legal opinion as
to matters reasonably requested by such Requesting Participating
Broker-Dealer relating to the Exchange Offer Registration Statement
and the related Prospectus and any amendments or supplements thereto,
and (z) include a plan of distribution in such Exchange Offer
Registration Statement that meets the requirements set forth in the
preceding paragraph. The Initial Purchasers shall have no liability
to any Requesting Participating Broker-Dealer with respect to any
request made pursuant to this Section 2(b).
In connection with the Exchange Offer, the Issuers shall:
(1) mail to each Holder entitled to participate in the
Exchange Offer a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
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(2) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of
New York;
(3) 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
(4) otherwise comply in all material respects with all
applicable laws, rules and regulations.
If, prior to consummation of the Exchange Offer, any Holder
(including the Initial Purchasers) holds any Notes acquired by it that
have, or that are reasonably likely to be determined to have, the
status of an unsold allotment in an initial distribution, or if any
Holder is not entitled to participate in the Exchange Offer, the
Issuers upon the request of any such Holder shall simultaneously with
the delivery of the Exchange Notes in the Exchange Offer, issue and
deliver to any such Holder, in exchange (the "PRIVATE EXCHANGE") for
such Notes held by any such Holder, a like principal amount of notes,
guaranteed on a senior basis by the Guarantors of the Company (the
"PRIVATE EXCHANGE NOTES"), that are identical in all material respects
to the Exchange Notes.
As soon as practicable after the close of the Exchange Offer
and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Notes or portions thereof
validly tendered and not validly withdrawn pursuant to the
Exchange Offer and the Private Exchange;
(2) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes so accepted for exchange; and
(3) issue, cause the Trustee to authenticate and deliver
promptly to each Holder of 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.
The Exchange Offer and the Private Exchange shall not be
subject to any conditions, other than that (i) the Exchange Offer or
Private Exchange, as the case may be, does not violate applicable law
or any applicable interpretation of the staff of the Commission,
(ii) no action or proceeding shall have been instituted or threatened
in any court or by any governmental agency which might materially
impair the ability of the Issuers to proceed with the Exchange Offer
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or the Private Exchange, and no material adverse development shall
have occurred in any existing action or proceeding with respect to the
Issuers and (iii) all governmental approvals shall have been obtained,
which approvals the Issuers deem necessary for the consummation of the
Exchange Offer or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be
issued under (i) the Indenture or (ii) an indenture identical in all
material respects to the Indenture (in either case, with such changes
as are necessary to comply with any requirements of the Commission to
effect or maintain the qualification thereof under the TIA) and which,
in either case, has been qualified under the TIA and shall provide
that the Exchange Notes shall not be subject to the transfer
restrictions set forth in the Indenture. The Indenture or such
indenture shall provide that the Exchange Notes, the Private Exchange
Notes and the Notes shall vote and consent together on all matters as
one class and that none of the Exchange Notes, the Private Exchange
Notes or the Notes will have the right to vote or consent as a
separate class on any matter. The Private Exchange Notes shall bear
the same CUSIP number as the Exchange Notes.
(c) If, (i) because of any applicable interpretations of
the staff of the Commission, the Issuers are not permitted to file the
Exchange Offer Registration Statement or to effect the Exchange Offer,
(ii) the Exchange Offer is not consummated within 210 days of the
Issue Date, (iii) the Initial Purchasers so request with respect to
Notes not eligible to be exchanged for Exchange Notes in the Exchange
Offer, (iv) any Holder of a Note notifies the Issuers that (A) due to
a change in law or policy it is not entitled to participate in the
Exchange Offer, (B) due to a change in law or policy it may not resell
Exchange Notes acquired by it in the Exchange Offer to the public
without delivering a prospectus and the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available
for such resales by such holder or (C) it owns Notes (including the
Initial Purchasers if they hold Notes as part of an unsold allotment
from the original offering of the Notes) acquired directly from an
Issuer or an affiliate of an Issuer or (v) any holder of Private
Exchange Notes so requests after the consummation of the Private
Exchange (each such event referred to in clauses (i) through (v) of
this sentence, a "SHELF FILING EVENT"), then the Issuers (x) shall
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promptly deliver to the Holders and the Trustee written notice thereof
in the case of clause (i) or (ii) and (y) at their own expense shall
file a Shelf Registration pursuant to Section 3 hereof.
Section 3. Shelf Registration
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If at any time a Shelf Filing Event shall occur, then:
(a) Shelf Registration. The Issuers shall file with the
------------------
Commission a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Registrable
Notes not exchanged in the Exchange Offer, Private Exchange Notes and
Exchange Notes as to which Section 2(c)(iv) is applicable (the
"INITIAL SHELF REGISTRATION"). The Issuers shall use their best
efforts to file with the Commission the Initial Shelf Registration as
promptly as practicable. 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
designated by them (including, without limitation, one or more
underwritten offerings). The Issuers shall not permit any securities
other than the Registrable Notes to be included in the Initial Shelf
Registration or any Subsequent Shelf Registration (as defined below).
The Issuers shall use their best efforts to cause the
Initial Shelf Registration to be declared effective under the
Securities Act on or prior to the Effectiveness Date and to keep the
Initial Shelf Registration continuously effective under the Securities
Act for the period ending on the date which is two years from the
Issue Date, subject to extension pursuant to the last paragraph of
Section 5 hereof (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 or (ii) a Subsequent
Shelf Registration covering all of the Registrable Notes covered by
and not sold under the Initial Shelf Registration or an earlier
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Subsequent Shelf Registration has been declared effective under the
Securities Act; provided, however, that the Effectiveness Period in
respect of the Initial Shelf Registration shall be extended to the
extent required to permit dealers to comply with the applicable
prospectus delivery requirements of Rule 174 under the Securities Act
and as otherwise provided herein; provided, further, that the Issuers
may suspend the effectiveness of a Shelf Registration Statement by
written notice to the Holders for a period not to exceed 60 days in
any calendar year if, (i) an event occurs and is continuing as a
result of which the Shelf Registration Statement would, in the
Issuers' good faith judgment, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading and (ii) (a) the Issuers
determine 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 previously undisclosed
pending material business transaction, the disclosure of which would
impede the Issuers' ability to consummate such transaction.
(b) Subsequent Shelf Registrations. If the Initial Shelf
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Registration or any Subsequent 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 Issuers shall use their best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof,
and in any event shall as soon as practicable after such cessation
amend the Initial Shelf Registration in a manner 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 covered by and not sold under
the Initial Shelf Registration or an earlier Subsequent Shelf
Registration (each, a "SUBSEQUENT SHELF REGISTRATION"). If a
Subsequent Shelf Registration is filed, the Issuers shall use their
best efforts to cause the Subsequent Shelf Registration to be declared
effective under the Securities Act as soon as practicable after such
filing and to keep such Registration Statement 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
continuously effective. As used herein the term "SHELF REGISTRATION"
means the Initial Shelf Registration and any Subsequent Shelf
Registration.
(c) Supplements and Amendments. The Issuers shall promptly
--------------------------
supplement and amend the 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
reasonably requested by the Holders of a majority in aggregate
principal amount of the Registrable Notes covered by such Registration
Statement or by any underwriter of such Registrable Notes.
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Section 4. Additional Interest
(a) The Issuers and the Initial Purchasers agree that the
Holders will suffer damages if the Issuers fail to fulfill their
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 Issuers agree to pay, as liquidated damages,
additional 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 (A) neither the Exchange Offer Registration Statement
nor the Initial Shelf Registration has been filed on or prior to
the applicable Filing Date or (B) notwithstanding that the Issuers
have consummated or will consummate the Exchange Offer, the
Issuers are required to file a Shelf Registration and such Shelf
Registration is not filed on or prior to the Filing Date
applicable thereto, then, commencing on the day after any such
Filing Date, Additional Interest shall accrue on the principal
amount of the Notes at a rate of 0.50% per annum for the first 90
days immediately following each such Filing Date, and such
Additional Interest rate shall increase by an additional 0.25%
per annum at the beginning of each subsequent 90-day period; or
(ii) if (A) neither the Exchange Offer Registration Statement
nor the Initial Shelf Registration is declared effective by the
Commission on or prior to the relevant Effectiveness Date or (B)
notwithstanding that the Issuers have consummated or will
consummate the Exchange Offer, the Issuers are required to file a
Shelf Registration and such Shelf Registration is not declared
effective by the Commission on or prior to the Effectiveness Date
in respect of such Shelf Registration, then, commencing on the
day after such Effectiveness Date, Additional Interest shall
accrue on the principal amount of the Notes at a rate of 0.50%
per annum for the first 90 days immediately following the day
after such Effectiveness Date, and such Additional Interest rate
shall increase by an additional 0.25% per annum at the beginning
of each subsequent 90-day period; or
(iii) if (A) the Issuers have not exchanged Exchange Notes
for all Notes validly tendered in accordance with the terms of
the Exchange Offer on or prior to the 210th day following the
Issue Date or (B) the Exchange Offer Registration Statement or
the Shelf Registration is declared effective but thereafter
-14-
ceases to be effective at any time during the Effectiveness
Period (except as permitted by Section 10(a) hereof) for a period
of 15 consecutive days without being succeeded immediately by an
additional Exchange Offer Registration Statement or Shelf
Registration Statement, as the case may be, filed and declared
effective, then Additional Interest shall accrue on the principal
amount of the Notes at a rate of 0.50% per annum for the first 90
days commencing on the (x) 210th day after the Issue Date, in the
case of (A) above, or (y) the 16th day after such Exchange Offer
Registration Statement or Shelf Registration ceases to be
effective in the case of (B) above, and such Additional Interest
rate shall increase by an additional 0.25% per annum at the
beginning of each such subsequent 90-day period;
provided, however, that the Additional Interest rate on the Notes may
not exceed at any one time in the aggregate 1.0% per annum; provided,
further, however, that (1) upon the filing of the applicable Exchange
Offer Registration Statement or the applicable Shelf Registration as
required hereunder (in the case of clause (i) above of this
Section 4), (2) upon the effectiveness of the Exchange Offer
Registration Statement or the applicable Shelf Registration Statement
as required hereunder (in the case of clause (ii) of this Section 4),
or (3) upon the exchange of the applicable Exchange Notes for all
Notes tendered (in the case of clause (iii)(A) of this Section 4), or
upon the effectiveness of the applicable Exchange Offer Registration
Statement or Shelf Registration Statement which had ceased to remain
effective (in the case of (iii)(B) of this Section 4), Additional
Interest on the Notes in respect of which such events relate as a
result of such clause (or the relevant subclause thereof), as the case
may be, shall cease to accrue.
(b) The Issuers shall notify the Trustee within one
Business Day 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 (a)(i),
(a)(ii) or (a)(iii) of this Section 4 will be payable in cash
semi-annually on the interest payment dates specified in the Indenture
(to the holders of record as specified in the Indenture), commencing
with the first such interest payment 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 Registrable 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.
-15-
Section 5. Registration Procedures
-----------------------
In connection with the filing of any Registration Statement
pursuant to Sections 2 or 3 hereof, the Issuers shall effect such
registrations to permit the sale of the 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 Issuers hereunder the Issuers shall:
(a) Prepare and file with the Commission prior to the applicable
Filing Date, a Registration Statement or Registration Statements
as prescribed by Sections 2 or 3 hereof, and use their best
efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided,
however, that, if (1) such filing is pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof 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 Issuers shall furnish to and afford the
Holders of the Registrable Notes covered by such Registration
Statement or each such Participating Broker-Dealer, as the case
may be, their counsel and the managing underwriters, if any, 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 five Business Days prior to such filing).
The Issuers shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto 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, their
counsel, or the managing underwriters, if any, shall reasonably
object.
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(b) Prepare and file with the Commission such amendments and
post-effective amendments to each Shelf Registration Statement or
Exchange Offer 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 each of 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, in each case, in accordance with the intended methods
of distribution set forth in such Registration Statement or
Prospectus, as so amended. The Issuers shall be deemed not to
have used their best efforts to keep a Registration Statement
effective during the Effective Period or the Applicable Period,
as the case may be, relating thereto if the Issuers voluntarily
take any action that would result in selling Holders of the
Registrable Notes covered thereby 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 is required by applicable law.
(c) If (1) a Shelf Registration is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof 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, notify the selling
Holders of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, their counsel and the managing
underwriters, if any, as promptly as possible, and, if requested
by any such Person, confirm such notice in writing, (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 under the Securities Act (including in such
notice a written statement that any Holder may, upon request,
obtain, at the sole expense of the Issuers, one conformed copy of
such Registration Statement or post-effective amendment including
financial statements and schedules, documents incorporated or
deemed to be incorporated by reference and exhibits), (ii) of the
issuance by the Commission of any stop order suspending the
effectiveness of a Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or
the initiation of any proceedings for that purpose, (iii) if at
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any time when a prospectus is required by the Securities Act to
be delivered in connection with sales of the Registrable Notes or
resales of Exchange Notes by Participating Broker-Dealers the
representations and warranties of the Issuers contained in any
agreement (including any underwriting agreement) contemplated by
Section 5(m) hereof cease to be true and correct in all material
respects, (iv) of the receipt by the Issuers 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 or any information becoming known to
the Issuers 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, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading, and that in the case of 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, and (vi) of the Issuers
determination that a post-effective amendment to a Registration
Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the Exchange
Offer Registration Statement filed pursuant to Section 2 hereof
is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, use their 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 their best efforts to obtain the withdrawal of any such
order at the earliest practicable moment.
-18-
(e) If a Shelf Registration is filed pursuant to Section 3
and if requested by the managing underwriter or underwriters (if
any), the Holders of a majority in aggregate principal amount
of the Registrable Notes being sold in connection with an
underwritten offering or any Participating Broker-Dealer,
(i) promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing
underwriter or underwriters (if any), such Holders or any
Participating Broker-Dealer (based upon advice of counsel)
determine is reasonably necessary to be included therein,
(ii) make all required filings of such prospectus supplement or
such post-effective amendment as soon as practicable after the
Issuers have received notification of the matters to be
incorporated in such prospectus supplement or post-effective
amendment; provided, however, that the Issuers shall not be
required to take any action hereunder that would, in the written
opinion of counsel to the Issuers, violate applicable laws, and
(iii) supplement or make amendments to such Registration
Statement (based upon the reasonable advice of counsel).
(f) If (1) a Shelf Registration is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is
required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, furnish to each selling Holder of
Registrable Notes and to each such Participating Broker-Dealer
who so requests and to counsel and each managing underwriter, if
any, at the sole expense of the Issuers, one conformed copy of
the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements
and schedules, and, if requested, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits.
-19-
(g) If (1) a Shelf Registration is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is
required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, deliver to each selling Holder of
Registrable Notes, or each such Participating Broker-Dealer, as
the case may be, their respective counsel, and the underwriters,
if any, at the sole expense of the Issuers, as many copies of the
Prospectus or Prospectuses (including each form of preliminary
prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may
reasonably request; and, subject to the last paragraph of this
Section 5, the Issuers hereby consent to the use of such
Prospectus and each amendment or supplement thereto 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.
(h) Prior to any public offering of Registrable Notes or
any delivery of a Prospectus contained in the Exchange Offer
Registration Statement by any Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, use
their 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 managing
underwriter or 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 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 the managing
underwriter or underwriters reasonably request; provided,
however, that where Exchange Notes held by Participating
-20-
Broker-Dealers or Registrable Notes are offered other than
through an underwritten offering, the Issuers agree to cause the
Issuers counsel to perform Blue Sky investigations and file
registrations and qualifications required to be filed pursuant to
this Section 5(h); 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
Exchange Notes held by Participating Broker-Dealers or the
Registrable Notes covered by the applicable Registration
Statement; provided, however, that none of the Issuers shall 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 excess of a nominal dollar amount in any
such jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3
hereof, cooperate 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 request at least two
Business Days prior to any sale of such Registrable Notes.
(j) Use their best efforts to cause the Registrable Notes
covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as
may be reasonably necessary to enable the seller or sellers
thereof or the underwriter or underwriters, 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 Issuers will cooperate in
all reasonable respects with the efforts of such selling Holder
to secure such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is
required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes
-21-
during the Applicable Period, upon the occurrence of any event
contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly
as practicable prepare and (subject to Section 5(a) hereof) file
with the Commission, at the sole expense of the Issuers, 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, any 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 the light of the circumstances under which they were
made, not misleading.
(l) Use its best efforts to cause the Registrable Notes
covered by a Registration Statement to be rated with the
appropriate rating agencies, if so requested by the Holders of a
majority in aggregate principal amount of Registrable Notes
covered by such Registration Statement or the managing
underwriter or underwriters, if any.
(m) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the
Trustee with certificates for the Registrable Notes in a form
eligible for deposit with The Depository Trust Company and
(ii) provide a CUSIP number for the Registrable Notes.
(n) In connection with any underwritten offering of Registrable
Notes pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten offerings
of debt securities similar to the Notes and take all such other
actions as are reasonably requested by the managing underwriter
or underwriters in order to expedite or facilitate the
registration or the disposition of such Registrable Notes and, in
such connection, (i) make such representations and warranties to,
and covenants with, the underwriters with respect to the business
of the Company and its subsidiaries (including any acquired
business, properties or entity, if applicable) and the
Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein,
in each case, as are customarily made by issuers to underwriters
in underwritten offerings of debt securities similar to the
Notes, and confirm the same in writing if and when requested;
(ii) use their best efforts to obtain the written opinions of
counsel to the Issuers and written updates thereof in form, scope
and substance reasonably satisfactory to the managing underwriter
or underwriters, addressed to the underwriters covering the
matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested
by the managing underwriter or underwriters; (iii) use their best
-22-
efforts to obtain "cold comfort" letters and updates thereof in
form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters from the independent certified public
accountants of the Issuers (and, if necessary, any other
independent certified public accountants of any subsidiary of the
Company or of any business acquired by any of the Issuers for
which financial statements and financial data are, or are
required to be, included or incorporated by reference 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; and (iv) if an underwriting
agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable than those set forth
in Section 7 hereof (or such other less favorable provisions and
procedures acceptable to Holders of a majority in aggregate
principal amount of Registrable Notes covered by such
Registration Statement and the managing underwriter or
underwriters or agents) with respect to all parties to be
indemnified pursuant to said Section. The above shall be done at
each closing under such underwriting agreement, or as and to the
extent required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof 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 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, all financial and other records,
pertinent corporate documents and instruments of the Company 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 Company and its subsidiaries to supply all
information reasonably requested by any such Inspector in
-23-
connection with such Registration Statement and Prospectus. Each
Inspector shall agree in writing that it will not disclose any
records that the Issuers determine, in good faith, to be
confidential and that it notifies the Inspectors in writing are
confidential unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in such
Registration Statement or Prospectus, (ii) the release of such
Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction, (iii) disclosure of such
information is 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, relating to, or involving this Agreement or the
Purchase Agreement, or any transactions contemplated hereby or
thereby or arising hereunder or thereunder, or (iv) the
information in such Records has been made generally available to
the public; provided, however, that such Inspector shall take
such actions as are reasonably necessary to protect the
confidentiality of such information (if practicable) to the
extent such action is otherwise not inconsistent with, an
impairment of or in derogation of the rights and interests of the
Holder or any Inspector.
(p) Provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and cause the Indenture
or the trust indenture provided for in Section 2(a) hereof, as
the case may be, to be qualified under the TIA not later than the
effective date of the Exchange Offer or the first Registration
Statement relating to the Registrable Notes; and in connection
therewith, cooperate with the trustee under any such indenture
and the Holders of the Registrable Notes, 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 their best efforts to cause such trustee to execute, all
-24-
documents as may be required to effect such changes, and all
other forms and documents required to be filed with the
Commission to enable such indenture to be so qualified in a
timely manner.
(q) Comply with all applicable rules and regulations of the
Commission and make generally available to its securityholders
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
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 Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(r) Upon consummation of the Exchange Offer or a Private
Exchange, use their best efforts to obtain an opinion of counsel
to the Issuers, in a form customary for underwritten
transactions, addressed to the Trustee for the benefit of all
Holders of Registrable Notes participating in the Exchange Offer
or the Private Exchange, as the case may be, that the Exchange
Notes or Private Exchange Notes, as the case may be, and the
related indenture constitute legal, valid and binding obligations
of the Issuers, enforceable against each of the Issuers in
accordance with their respective terms, subject to customary
exceptions and qualifications.
(s) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to
the Company (or to such other Person as directed by the Company)
in exchange for the Exchange Notes or the Private Exchange Notes,
as the case may be, xxxx, or cause to be marked, on such
Registrable Notes that such Registrable Notes are being cancelled
in exchange for the Exchange Notes or the Private Exchange Notes,
as the case may be; in no event shall such Registrable Notes be
marked as paid or otherwise satisfied.
-25-
(t) 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 National Association of Securities Dealers,
Inc. (the "NASD").
(u) Use their best efforts to take all other steps necessary or
advisable to effect the registration of the Exchange Notes and/or
Registrable Notes covered by a Registration Statement
contemplated hereby.
The Issuers may require each seller of Registrable Notes as
to which any registration is being effected to furnish to the Issuers
such information regarding such seller and the distribution of such
Registrable Notes as the Issuers may, from time to time, reasonably
request. The Issuers may exclude from such registration the
Registrable Notes of any seller so long as such seller fails to
furnish such information within a reasonable time after receiving such
request. Each seller as to which any Shelf Registration is being
effected agrees to furnish promptly to the Issuers all information
required to be disclosed in order to make the information previously
furnished to the Issuers by such seller not materially misleading.
If any such Registration Statement refers to any Holder by
name or otherwise as the holder of any securities of the Issuers, then
such Holder shall have the right to require (i) the insertion therein
of language, in form and substance reasonably satisfactory to such
Holder, to the effect that the holding by such Holder of such
securities is not to be construed as a recommendation by such Holder
of the investment quality of the securities covered thereby and that
such holding does not imply that such Holder will assist in meeting
any future financial requirements of the Issuers, or (ii) in the event
that such reference to such Holder by name or otherwise is not
required by the Securities Act or any similar federal statute then in
force, the deletion of the reference to such Holder in any amendment
or supplement to the Registration Statement filed or prepared
subsequent to the time that such reference ceases to be required.
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 actual receipt of any notice from the Issuers
of the happening of any event of the kind described in Section
5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such Holder will
-26-
forthwith discontinue disposition of such Registrable Notes covered by
such Registration Statement or Prospectus or Exchange Notes to be sold
by such Holder or Participating Broker-Dealer, as the case may be,
until such Holder's or Participating Broker-Dealer's receipt of the
copies of the supplemented or amended Prospectus contemplated by
Section 5(k) hereof, or until it is advised in writing (the "ADVICE")
by the Issuers that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements
thereto. In the event that the Issuers shall give any 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 Registrable Notes covered by such Registration
Statement or Exchange Notes to be sold by such Participating
Broker-Dealer, as the case may be, shall have received (x) the copies
of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof or (y) the Advice.
Section 6. Registration Expenses
---------------------
All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers shall be borne by the
Issuers, whether or not the Exchange Offer Registration Statement or
any Shelf Registration is filed or becomes effective or the Exchange
Offer is consummated, 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 an underwritten offering (but excluding fees directly
attributable to NASD review of underwriters' compensation) 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 Notes or Exchange Notes and determination of the
eligibility of the Registrable Notes or Exchange Notes for investment
under the laws of such jurisdictions (x) where the holders of
Registrable Notes are located, in the case of the Exchange Notes, or
(y) as provided in Section 5(h) hereof, in the case of Registrable
Notes or Exchange Notes to be sold by a Participating Broker-Dealer
during the Applicable Period)), (ii) printing expenses, including,
without limitation, expenses of printing certificates for Registrable
Notes or Exchange Notes in a form eligible for deposit with The
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Depository Trust Company and of printing prospectuses if the printing
of prospectuses is requested by the managing underwriter or
underwriters, if any, by the Holders of a majority in aggregate
principal amount of the Registrable Notes included in any Registration
Statement or in respect of Registrable Notes or Exchange Notes to be
sold by any Participating Broker-Dealer during the Applicable Period,
as the case may be, (iii) messenger, telephone and delivery expenses
of the Issuers, (iv) fees and disbursements of counsel for the Issuers
and reasonable fees and disbursements of one special counsel which
shall be reasonably satisfactory to the Company for all of the sellers
of Registrable Notes (exclusive of any counsel retained pursuant to
Section 7 hereof), (v) fees and disbursements of all independent
certified public accountants referred to in Section 5(m)(iii) hereof
(including, without limitation, the expenses of any special audit and
"cold comfort" letters required by or incident to such performance),
(vi) Securities Act liability insurance, if the Issuers desire such
insurance, (vii) fees and expenses of all other Persons retained by
the Issuers, (viii) internal expenses of the Issuers (including,
without limitation, all salaries and expenses of officers and
employees of the Issuers performing legal or accounting duties),
(ix) the expense of any annual or special audit, (x) the fees and
expenses incurred in connection with the listing of the securities to
be registered on any securities exchange, and the obtaining of a
rating of the securities, in each case, if applicable, (xi) the fees
and disbursements of underwriters, if any, customarily paid by issuers
or sellers of securities (but not including any underwriting discounts
or commissions or transfer taxes, if any, attributable to the sale by
or on behalf of the Holders of the Registrable Notes which discounts,
commissions or taxes shall be paid by Holders of such Registrable
Notes) and (xii) the expenses of the Issuers relating to printing,
word processing and distributing all Registration Statements,
underwriting agreements, indentures and any other documents necessary
in order to comply with this Agreement.
Section 7. Indemnification
---------------
(a) The Issuers agree, jointly and severally, to indemnify
and hold harmless each Holder of Registrable Notes and each
Participating Broker-Dealer selling Exchange Notes during the
Applicable Period, the officers and directors of each such Person, and
each Person, if any, who controls any such Person within the meaning
of either Section 15 of the Securities Act or Section 20 of the
Exchange Act (each, a "PARTICIPANT"), from and against any and all
losses, claims, damages and liabilities (including, without
limitation, the reasonable legal fees and other expenses actually
incurred in connection with any suit, action or proceeding or any
claim asserted) caused by, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in
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any Registration Statement (or any amendment thereto) or Prospectus
(as amended or supplemented if the Issuers shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or
caused by, arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the case of
the Prospectus in the light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims, damages
or liabilities are caused by any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Participant furnished to
the Issuers in writing by or on behalf of such Participant expressly
for use therein; provided, however, that the foregoing indemnity with
respect to any preliminary prospectus shall not inure to the benefit
of any Participant from whom the Person asserting such losses, claims,
damages or liabilities purchased Registrable Notes if (x) it is
established in the related proceeding that such Participant failed to
send or give a copy of the Prospectus (as amended or supplemented if
such amendment or supplement was furnished to such Participant prior
to the written confirmation of such sale) to such Person with or prior
to the written confirmation of such sale, if required by applicable
law, and (y) the untrue statement or omission or alleged untrue
statement or omission was completely corrected in the Prospectus (as
amended or supplemented if amended or supplemented as aforesaid) and
such Prospectus does not contain any other untrue statement or
omission or alleged untrue statement or omission that was the subject
matter of the related proceeding.
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless the Issuers, its directors, its officers
and each Person who controls any Issuer within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent (but on a several, and not joint, basis) as the
foregoing indemnity from the Issuers to each Participant, but only
with reference to information relating to such Participant furnished
to the Issuers in writing by such Participant expressly for use in any
Registration Statement or Prospectus, any amendment or supplement
thereto, or any preliminary prospectus.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be
brought or asserted against any Person in respect of which indemnity
-29-
may be sought pursuant to either of the two preceding paragraphs, such
Person (the "INDEMNIFIED PERSON") shall promptly notify the Persons
against whom such indemnity may be sought (the "INDEMNIFYING PERSONS")
in writing, and the Indemnifying Persons, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to
the Indemnified Person to represent the Indemnified Person and any
others the Indemnifying Persons may reasonably designate in such
proceeding and shall pay the fees and expenses actually incurred by
such counsel related to such proceeding; provided, however, that the
failure to so notify the Indemnifying Persons shall not relieve any of
them of any obligation or liability which any of them may have
hereunder or otherwise. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the Indemnifying Persons and the
Indemnified Person shall have mutually agreed to the contrary,
(ii) the Indemnifying Persons shall have failed within a reasonable
period of time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both any Indemnifying Person
and the Indemnified Person or any affiliate thereof and representation
of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is
understood that, unless there exists a conflict among Indemnified
Persons, the Indemnifying Persons shall not, in connection with any
one such proceeding or separate but substantially similar related
proceeding in the same jurisdiction arising out of the same general
allegations, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed
promptly as they are incurred. Any such separate firm for the
Participants and such control Persons of Participants shall be
designated in writing by Participants who sold a majority in interest
of Registrable Notes and Exchange Notes sold by all such Participants
and shall be reasonably acceptable to the Issuers and any such
separate firm for the Issuers, their respective directors, their
respective officers and such control Persons of any of the Issuers
shall be designated in writing by the Issuers and shall be reasonably
acceptable to the Holders. The Indemnifying Persons shall not be
-30-
liable for any settlement of any proceeding effected without its prior
written consent (which consent shall not be unreasonably withheld or
delayed), but if settled with such consent or if there be a final
judgment for the plaintiff for which the Indemnified Person is
entitled to indemnification pursuant to this Agreement, each of the
Indemnifying Persons agrees to indemnify and hold harmless each
Indemnified Person from and against any loss or liability by reason of
such settlement or judgment. No Indemnifying Person shall, without
the prior written consent of the Indemnified Persons (which consent
shall not be unreasonably withheld or delayed), effect any settlement
or compromise of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement (A) includes an unconditional written release
of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (B) does not
include any statement as to an admission of fault, culpability or
failure to act by or on behalf of such Indemnified Person.
(d) If the indemnification provided for in the first and
second paragraphs of this Section 7 is for any reason unavailable to,
or insufficient to hold harmless, an Indemnified Person in respect of
any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraphs, in lieu of
indemnifying such Indemnified Person thereunder and in order to
provide for just and equitable contribution, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such
losses, claims, damages or liabilities in such proportion as is
appropriate to reflect (i) the relative benefits received by the
Indemnifying Person or Persons on the one hand and the Indemnified
Person or Persons on the other from the offering of the Notes or (ii)
if the allocation provided by the foregoing clause (i) is not
permitted by applicable law, not only such relative benefits but also
the relative fault of the Indemnifying Person or Persons on the one
hand and the Indemnified Person or Persons on the other in connection
with the statements or omissions or alleged statements or omissions
that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof) as well as any other relevant equitable
considerations. The relative benefits received by the Issuers on the
one hand and the Participants on the other shall be deemed to be in
the same proportion as the total proceeds from the offering (net of
discounts and commissions but before deducting expenses) of the Notes
received by the Issuers bears to the total proceeds received by such
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Participant from the sale of Registrable Notes or Exchange Notes, as
the case may be. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Issuers on the one hand or such Participant or such other
Indemnified Person, as the case may be, on the other, the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances.
(e) The parties agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the Participants were treated as one
entity for such purpose) or by any other method of allocation that
does not take account of the equitable considerations referred to in
the immediately preceding paragraph. The amount paid or payable by an
Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any
reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall a Participant be required to contribute
any amount in excess of the amount by which proceeds received by such
Participant from sales of Registrable Notes or Exchange Notes, as the
case may be, exceeds the amount of any damages that such Participant
has otherwise been required to pay or has paid 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.
(f) Any losses, claims, damages, liabilities or expenses
for which an Indemnified Person is entitled to indemnification or
contribution under this Section 7 shall be paid by the Indemnifying
Person to the Indemnified Person as such losses, claims, damages,
liabilities or expenses are incurred. The indemnity and contribution
agreements contained in this Section 7 and the representations and
warranties of the Issuers set forth in this Agreement shall remain
operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Holder or any person who
controls a Holder, any of the Issuers, their respective directors or
officers or any person controlling any of the Issuers, and (ii) any
termination of this Agreement.
-32-
(g) The indemnity and contribution agreements contained in
this Section 7 will be in addition to any liability which the
Indemnifying Persons may otherwise have to the Indemnified Persons
referred to above.
Section 8. Rules 144 and 144A
------------------
Each of the Issuers covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange
Act and the rules and regulations adopted by the Commission thereunder
in a timely manner in accordance with the requirements of the
Securities Act and the Exchange Act and, if at any time such Issuer is
not required to file such reports, it will, upon the request of any
Holder or beneficial owner of Registrable Notes, make available such
information necessary to permit sales pursuant to Rule 144A under the
Securities Act. Each of the Issuers further covenants that it will
take such further action as any Holder of Registrable Notes may
reasonably request, all to the extent required from time to time to
enable such Holder to sell Registrable Notes without registration
under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144(k) and Rule 144A under the Securities Act, as
such Rules may be amended from time to time, or (b) any similar rule
or regulation hereafter adopted by the Commission. Notwithstanding
the foregoing, nothing in this Section 8 shall be deemed to require
any of the Issuers to register any of its securities pursuant to the
Exchange Act.
Section 9. Underwritten Registrations
--------------------------
If any of the Registrable Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that
will manage the offering will be selected by the Holders of a majority
in aggregate principal amount of such Registrable Notes included in
such offering and shall be reasonably acceptable to the Issuers.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder (a) agrees to
sell such Holder'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.
-33-
Section 10. Miscellaneous
-------------
(a) No Inconsistent Agreements. None of the Issuers has,
--------------------------
as of the date hereof, and none of the Issuers shall, after the date
of this Agreement, enter into any agreement with respect to any of its
securities that is inconsistent with the rights granted to the Holders
of Registrable Notes in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not
conflict with and are not inconsistent with, in any material respect,
the rights granted to the holders of any of the Issuers' other issued
and outstanding securities under any such agreements. None of the
Issuers has entered and will not enter into any agreement with respect
to any of its securities which will grant to any Person piggy-back
registration rights with respect to any Registration Statement.
(b) Adjustments Affecting Registrable Notes. None of the
---------------------------------------
Issuers shall, directly or indirectly, take any action with respect to
the Registrable Notes as a class that would adversely affect the
ability of the Holders of Registrable Notes to include such
Registrable Notes in a registration undertaken pursuant to this
Agreement.
(c) 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
except pursuant to a written agreement duly signed and delivered by
(I) the Issuers and (II)(A) the Holders of not less than a majority in
aggregate principal amount of the then outstanding Registrable Notes
and (B) in circumstances that would adversely affect the Participating
Broker-Dealers, the Participating Broker-Dealers holding not less than
a majority in aggregate principal amount of the Exchange Notes held by
all Participating Broker-Dealers; provided, however, that Section 7
and this Section 10(c) may not be amended, modified or supplemented
except pursuant to a written agreement duly signed and delivered by
each Holder and each Participating Broker-Dealer (including any person
who was a Holder or Participating Broker-Dealer of Registrable Notes
or Exchange Notes, as the case may be, disposed of pursuant to any
Registration Statement) affected by any such amendment, modification
or supplement. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that
-34-
relates exclusively to the rights of Holders of Registrable Notes
whose securities are being 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 sold pursuant to such Registration
Statement.
(d) 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, registered first-class mail, next-day air
courier or telecopier:
(i) if to a Holder of the Registrable Notes or 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 under the Indenture.
(ii) if to the Issuers, at the address as follows:
National Vision Associates, Ltd.
000 Xxxxxxx Xxxxxxx
Xxxxxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Chief Executive Officer
(iii) if to the Initial Purchasers, as provided in the
Purchase Agreement.
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; when receipt is acknowledged by the recipient's telecopier
machine, if telecopied; and on the next Business Day, if timely
delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the
Trustee at the address and in the manner specified in such Indenture.
(e) 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, the Holders and the Participating
Broker-Dealers; provided, however, that this Agreement shall not inure
to the benefit of or be binding upon a successor or assign of a Holder
unless and to the extent such successor or assign holds Registrable
Notes.
-35-
(f) 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.
(g) Headings. The headings in this Agreement are for
--------
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(h) 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 ISSUERS
HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR
ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF
NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, AND EACH IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY,
JURISDICTION OF THE AFORESAID COURTS. Specified times of day refer to
New York City time.
(i) 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.
(j) Securities Held by any of the Issuers or their
----------------------------------------------
Affiliates. Whenever the consent or approval of Holders of a
----------
specified percentage of Registrable Notes is required hereunder,
Registrable Notes held by any of the Issuers or any of 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.
-36-
(k) Third Party Beneficiaries. Holders and beneficial
-------------------------
owners of Registrable Notes and Participating Broker-Dealers are
intended third party beneficiaries of this Agreement, and this
Agreement may be enforced by such Persons.
(l) Attorneys' Fees. As between the parties to this
---------------
Agreement, 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 successful party shall be entitled to
recover reasonable attorneys' fees in addition to its costs and
expenses and any other available remedy.
(m) Entire Agreement. This Agreement, together with the
----------------
Purchase Agreement and the Indenture, 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, understandings,
correspondence, conversations and memoranda between the Holders on the
one hand and the Issuers 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.
-37-
IN WITNESS WHEREOF, the Company has executed this
Registration Rights Agreement as of the date first written above.
NATIONAL VISION ASSOCIATES, LTD.
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: Senior Vice President
IN WITNESS WHEREOF, each of the subsidiaries of the Company
specified below has executed this Registration Rights Agreement as a
Guarantor as of the date first written above:
MIDWEST VISION, INC.
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
NVAL HEALTHCARE SYSTEMS, INC.
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
INTERNATIONAL VISION ASSOCIATES, LTD.
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
-38-
FRAME-N-LENS OPTICAL, INC.
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
VISION ADMINISTRATORS, INC.
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
INTERNATIONAL VISION ASSOCIATES OF
CANADA LTD.
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
INTERNATIONAL VISION ASSOCIATES OF
ONTARIO LTD.
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
FAMILY VISION CENTERS, INC.
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
-39-
NW ACQUISITION CORP.
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first
written above.
XXXXXXXX & CO. INC.
By: /s/ Xxxxxxx X. Xxxx XX
Name: Xxxxxxx X. Xxxx XX
Title: Director
NATIONSBANC XXXXXXXXXX SECURITIES LLC
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
FIRST UNION CAPITAL MARKETS
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
-40-
IN WITNESS WHEREOF, each of the subsidiaries of the Company
specified below has executed this Registration Rights Agreement as a
Guarantor as of the date of such Agreement:
Dated: October 23, 1998
NEW WEST EYEWORKS, INC.
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title:
ALEXIS HOLDING COMPANY, INC.
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title:
VISTA EYECARE NETWORK, LLC
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title:
