REGISTRATION RIGHTS AGREEMENT ACCO BRANDS CORPORATION
EXHIBIT 4.2
EXECUTION
COPY
$460,000,000
ACCO
BRANDS CORPORATION
10.625
% Senior Secured Notes due 2015
September 30, 2009
Credit
Suisse Securities (USA) LLC
Deutsche
Bank Securities Inc.
Banc of
America Securities LLC
BMO
Capital Markets Corp.
Barclays
Capital Inc.
Barrington
Research Associates, Inc.
CJS
Securities, Inc.
SunTrust
Xxxxxxxx Xxxxxxxx, Inc.
As
Representative (“Representative”) of the several Initial
Purchasers,
c/o
Credit Suisse Securities (USA) LLC
Xxxxxx
Xxxxxxx Xxxxxx
Dear
Sirs:
ACCO Brands Corporation, a Delaware
corporation (the “Company”), proposes to issue and sell to Credit Suisse
Securities (USA) LLC (“Credit Suisse”), Deutsche Bank Securities Inc., Banc of
America Securities LLC, BMO Capital Markets Corp., Barclays Capital Inc.,
Barrington Research Associates, Inc., CJS Securities, Inc. and SunTrust Xxxxxxxx
Xxxxxxxx, Inc. (collectively, the “Initial Purchasers”), upon the terms set
forth in a purchase agreement, dated September 21, 2009, between the Company,
the Guarantors and the Initial Purchasers (the “Purchase Agreement”), U.S.
$460,000,000 aggregate principal amount of its 10.625% Senior Secured Notes due
2015 (the “Initial Securities”) to be unconditionally
guaranteed (the “Guarantees”) by the subsidiaries of the Company listed on Schedule A hereto
(the “Guarantors”). The Initial Securities will be issued pursuant to
an Indenture, dated as of September 30, 2009 (the “Indenture”) among the
Company, the Guarantors and U.S. Bank National Association, as trustee (the
“Trustee”). To induce the Initial Purchasers to enter into the
Purchase Agreement and to satisfy a condition of the Initial Purchasers’
obligations thereunder, the Company agrees with the Initial Purchasers, for the
benefit of the holders of the Initial Securities (including, without limitation,
the Initial Purchasers), the Exchange Securities (as defined below) and the
Private Exchange Securities (as defined below) (collectively, the “Holders”), as
follows:
1. Registered Exchange
Offer. The Company and the Guarantors shall, at their own cost,
prepare and, not later than 180 days after (or, if the 180th day is not a
business day, the first business day thereafter) the date of original issue of
the Initial Securities (the “Issue Date”), file with the Securities and Exchange
Commission (the “Commission”) a registration statement (the “Exchange Offer
Registration Statement”) on an appropriate form under the Securities Act of
1933, as amended (the “Securities Act”), with respect to a proposed offer (the
“Registered Exchange Offer”) to the Holders of Securities (as defined below)
that are Transfer Restricted Securities (as defined in Section 6(d) herein)
who are not prohibited by any law or policy of the Commission from participating
in the Registered Exchange Offer, to issue and deliver to such Holders, in
exchange for the Initial Securities, a like aggregate principal amount of debt
securities (the
“Exchange
Securities”) of the Company issued under the Indenture and identical in all
material respects to the Initial Securities (except for the transfer
restrictions relating to the Initial Securities and the provisions relating to
the matters described in Section 6 herein) that would be registered under the
Securities Act. The Company and the Guarantors shall use their
commercially reasonable efforts to cause such Exchange Offer Registration
Statement to be declared effective under the Securities Act within 210 days of
the Issue Date (or if the 210th day is not a business day, the first business
day thereafter) (or, if the Commission elects to review the Exchange Offer
Registration Statement, within 270 days of the Issue Date (or if the 270th day is
not a business day, the first business day thereafter)) and shall keep the
Exchange Offer Registration Statement effective for not less than 30 days
(or longer, if required by applicable law) after the date notice of the
Registered Exchange Offer is mailed to the Holders (such period being called the
“Exchange Offer Registration Period”).
If the Company commences the Registered
Exchange Offer, the Company (on behalf of itself and the Guarantors) will be
entitled to close the Registered Exchange Offer 30 days after the commencement
thereof (provided that the Company has accepted all the Initial Securities
theretofore validly tendered in accordance with the terms of the Registered
Exchange Offer); provided, however, that if the
Registered Exchange Offer has not been consummated within 240 days of the Issue
Date (or, if the Commission elects to review the Exchange Offer Registration
Statement, within 300 days of the Issue Date), the Company will be required to
file a Shelf Registration Statement (as defined in Section 2 herein) in
compliance with Section 2 herein.
Following the declaration of the
effectiveness of the Exchange Offer Registration Statement, the Company (on
behalf of itself and the Guarantors) shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange the Initial Securities for Exchange
Securities (assuming that such Holder is not an affiliate of the Company or the
Guarantors within the meaning of the Securities Act, acquires the Exchange
Securities in the ordinary course of such Xxxxxx’s business and has no
arrangements with any person to participate in the distribution of the Exchange
Securities and is not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer) to trade such Exchange
Securities from and after their receipt without any limitations or restrictions
under the Securities Act and without material restrictions under the securities
laws of the several states of the United States.
The Company and the Guarantors
acknowledge that, pursuant to current interpretations by the Commission’s staff
of Section 5 of the Securities Act, in the absence of an applicable exemption
therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial
Securities, acquired for its own account as a result of market making activities
or other trading activities, for Exchange Securities (an “Exchanging Dealer”),
is required to deliver a prospectus containing the information set forth in (a)
Annex A hereto on the cover of such prospectus, (b) Annex B hereto in the
“Exchange Offer Procedures” section and the “Purpose of the Exchange Offer”
section of such prospectus, and (c) Annex C hereto in the “Plan of Distribution”
section of such prospectus in connection with a sale of any such Exchange
Securities received by such Exchanging Dealer pursuant to the Registered
Exchange Offer and (ii) an Initial Purchaser that elects to sell Exchange
Securities acquired in exchange for Initial Securities constituting any portion
of an unsold allotment is required to deliver a prospectus containing the
information required by Items 507 or 508 of Regulation S-K under the Securities
Act, as applicable, in connection with such sale.
The Company and the Guarantors shall
use their commercially reasonable efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the prospectus
contained therein, in order to permit such prospectus to be lawfully delivered
by all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Securities; provided, however, that (i) in the
case where such prospectus and any amendment or supplement thereto must be
delivered by an Exchanging Dealer or an
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Initial
Purchaser, such period shall be the lesser of 180 days and the date on which all
Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities
held by them (unless such period is extended pursuant to Section 3(j) below) and
(ii) the Company and the Guarantors shall make such prospectus and any amendment
or supplement thereto, available to any broker-dealer for use in connection with
any resale of any Exchange Securities for a period of not less than 180 days
after the consummation of the Registered Exchange Offer.
If, upon consummation of the Registered
Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as
part of its initial distribution, the Company, on behalf of itself and the
Guarantors and simultaneously with the delivery of the Exchange Securities
pursuant to the Registered Exchange Offer, shall issue and deliver to such
Initial Purchaser upon the written request of such Initial Purchaser, in
exchange (the “Private Exchange”) for the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Company
issued under the Indenture and identical in all material respects (including the
existence of restrictions on transfer under the Securities Act and the
securities laws of the several states of the United States, but excluding
provisions relating to the matters described in Section 6 herein) to the Initial
Securities (the “Private Exchange Securities”). The Initial
Securities, the Exchange Securities and the Private Exchange Securities are
herein collectively called the “Securities”.
In connection with the Registered
Exchange Offer, the Company, on behalf of itself and the Guarantors,
shall:
(a) mail to each Holder a
copy of the prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal and related
documents;
(b) keep the Registered
Exchange Offer open for not less than 30 days (or longer, if required by
applicable law) after the date notice thereof is mailed to the
Holders;
(c) utilize the services of
a depositary for the Registered Exchange Offer with an address in the Borough of
Manhattan, The City of New York, which may be the Trustee or an affiliate of the
Trustee;
(d) permit Holders to
withdraw tendered Securities at any time prior to the close of business, New
York time, on the last business day on which the Registered Exchange Offer shall
remain open; and
(e) otherwise comply with
all applicable laws.
As soon as practicable after the close
of the Registered Exchange Offer or the Private Exchange, as the case may be,
the Company shall:
(x) accept for exchange all
the Securities validly tendered and not withdrawn pursuant to the Registered
Exchange Offer and the Private Exchange;
(y) deliver to the Trustee
for cancellation all the Initial Securities so accepted for exchange;
and
(z) cause the Trustee to
authenticate and deliver Exchange Securities or Private Exchange Securities, as
the case may be, promptly to each Holder of Initial Securities equal in
principal amount to the Initial Securities of such Holder so accepted for
exchange.
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The Indenture will provide that the
Exchange Securities will not be subject to the transfer restrictions set forth
in the Indenture and that all the Securities will vote and consent together on
all matters as one class and that none of the Securities will have the right to
vote or consent as a class separate from one another on any matter.
Interest on each Exchange Security and
Private Exchange Security issued pursuant to the Registered Exchange Offer and
in the Private Exchange will accrue from the last interest payment date on which
interest was paid on the Initial Securities surrendered in exchange therefor or,
if no interest has been paid on the Initial Securities, from the date of
original issue of the Initial Securities.
Each Holder participating in the
Registered Exchange Offer shall be required to represent to the Company that at
the time of the consummation of the Registered Exchange Offer (i) any
Exchange Securities received by such Holder will be acquired in the ordinary
course of business, (ii) such Holder will have no arrangements or
understanding with any person to participate in the distribution of the
Securities or the Exchange Securities within the meaning of the Securities Act,
(iii) such Holder is not an “affiliate,” as defined in Rule 405 of the
Securities Act, of the Company or if it is an affiliate, such Holder will comply
with the registration and prospectus delivery requirements of the Securities Act
to the extent applicable, (iv) if such Holder is not a broker-dealer, that
it is not engaged in, and does not intend to engage in, the distribution of the
Exchange Securities and (v) if such Holder is a broker-dealer, that it will
receive Exchange Securities for its own account in exchange for Initial
Securities that were acquired as a result of market-making activities or other
trading activities and that it will be required to acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange
Securities.
Notwithstanding any other provisions
herein, the Company will ensure that (i) any Exchange Offer Registration
Statement and any amendment thereto and any prospectus forming a part thereof
and any supplement thereto complies in all material respects with the Securities
Act and the rules and regulations thereunder, (ii) any Exchange Offer
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any prospectus forming part of any Exchange
Offer Registration Statement, and any supplement to such prospectus, does not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
2. Shelf
Registration. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Company
and the Guarantors are not permitted to effect a Registered Exchange Offer, as
contemplated by Section 1 hereof, (ii) the Registered Exchange Offer is not
consummated within 240 days (or, if the Commission elects to review the Exchange
Offer Registration Statement, within 300 days) of the Issue Date or (iii) any
Holder notifies the Company within 20 days following the consummation of the
Registered Exchange Offer that (a) it is prohibited by any law or applicable
interpretations thereof by the staff of the Commission from participating in the
Registered Exchange Offer, (b) it may not resell the Exchange Securities
acquired by it in the Registered 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 or (c) it is an
Exchanging Dealer and owns Securities acquired directly from the Company or an
affiliate of the Company, the Company shall take the following
actions:
(a) The Company and the
Guarantors shall, at their cost, as promptly as practicable (but in no event
more than 60 days after so required or requested pursuant to this Section 2)
file with the Commission and thereafter shall use its commercially reasonable
efforts to cause to be declared effective (unless it becomes effective
automatically upon filing) within 120 days after so required or requested
pursuant to this Section 2 (but in no event earlier than the Company’s and the
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Guarantors’
obligation with respect to the filing of the Exchange Offer Registration
Statement), a registration statement (the “Shelf Registration Statement” and,
together with the Exchange Offer Registration Statement, a “Registration
Statement”) on an appropriate form under the Securities Act relating to the
offer and sale of the Transfer Restricted Securities (as defined in Section 6(d)
herein) by the Holders thereof from time to time in accordance with the methods
of distribution set forth in the Shelf Registration Statement and Rule 415 under
the Securities Act (hereinafter, the “Shelf Registration”); provided, however, that no Holder
(other than an Initial Purchaser) shall be entitled to have the Securities held
by it covered by such Shelf Registration Statement unless such Holder agrees in
writing to be bound by all the provisions of this Agreement applicable to such
Holder.
(b) The Company and the
Guarantors shall use their commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective in order to permit the prospectus
included therein to be lawfully delivered by the Holders of the relevant
Securities, for a period of one year (or for such longer period if extended
pursuant to Section 3(j) below) from the Issue Date or such shorter period that
will terminate when all the Securities covered by the Shelf Registration
Statement (i) have been sold pursuant thereto or (ii) are no longer restricted
securities (as defined in Rule 144 under the Securities Act, or any successor
rule thereof) or are saleable pursuant to Rule 144(d) under the Securities
Act. The Company and the Guarantors shall be deemed not to have used
their commercially reasonable efforts to keep the Shelf Registration Statement
effective during the requisite period if any of them voluntarily takes any
action that would result in Holders of Securities covered thereby not being able
to offer and sell such Securities during that period, unless such action is
required by applicable law.
(c) Notwithstanding any
other provisions of this Agreement to the contrary, the Company and the
Guarantors shall cause the Shelf Registration Statement and the related
prospectus and any amendment or supplement thereto, as of the effective date of
the Shelf Registration Statement, amendment or supplement, (i) to comply in all
material respects with the applicable requirements of the Securities Act and the
rules and regulations of the Commission and (ii) not to contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
3. Registration
Procedures. In connection with any Shelf Registration
contemplated by Section 2 hereof and, to the extent applicable, any Registered
Exchange Offer contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Company and the
Guarantors shall, at their cost (i) fulfill their obligations and comply
with the requirements listed in Section 1 and 2 hereof, as the case may be, (ii)
furnish to Credit Suisse, as Representative of each Initial Purchaser, prior to
the filing thereof with the Commission, a copy of the Registration Statement and
each amendment thereof and each supplement, if any, to the prospectus included
therein and, in the event that an Initial Purchaser (with respect to any portion
of an unsold allotment from the original offering) is participating in the
Registered Exchange Offer or the Shelf Registration Statement, the Company shall
use its commercially reasonable efforts to reflect in each such document, when
so filed with the Commission, such comments as Credit Suisse, as Representative
of the Initial Purchasers reasonably may propose; (iii) include the information
set forth in Annex A hereto on the cover, in Annex B hereto in the “Exchange
Offer Procedures” section and the “Purpose of the Exchange Offer” section and in
Annex C hereto in the “Plan of Distribution” section of the prospectus forming a
part of the Exchange Offer Registration Statement and include the information
set forth in Annex D hereto in the Letter of Transmittal delivered pursuant to
the Registered Exchange Offer; (iv) if requested by an Initial Purchaser,
include the information required by Items 507 or
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508 of
Regulation S-K under the Securities Act, as applicable, in the prospectus
forming a part of the Exchange Offer Registration Statement; (v) include
within the prospectus contained in the Exchange Offer Registration Statement a
section entitled “Plan of Distribution,” reasonably acceptable to the Initial
Purchasers, which shall contain a summary statement of the positions taken or
policies made by the staff of the Commission with respect to the potential
“underwriter” status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) of Exchange Securities received by such broker-dealer in the
Registered Exchange Offer (a “Participating Broker-Dealer”), whether such
positions or policies have been publicly disseminated by the staff of the
Commission or such positions or policies, in the reasonable judgment of the
Initial Purchasers based upon advice of counsel (which may be in-house counsel),
represent the prevailing views of the staff of the Commission; and (vi) in the
case of a Shelf Registration Statement, include in the prospectus included in
the Shelf Registration Statement (or, if permitted by Commission
Rule 430B(b), in a prospectus supplement that becomes a part thereof
pursuant to Commission Rule 430B(f)) that is delivered to any Holder
pursuant to Section 3(d) and (f), the names of the Holders who propose
to sell Securities pursuant to the Shelf Registration Statement, as selling
securityholders.
(b) The Company and the
Guarantors shall give written notice to the Initial Purchasers, the Holders of
the Securities and any Participating Broker-Dealer from whom the Company has
received prior written notice that it will be a Participating Broker-Dealer in
the Registered Exchange Offer (which notice pursuant to clauses (ii)-(v) hereof
shall be accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made):
(i) when the Registration
Statement or any amendment thereto has been filed with the Commission and when
the Registration Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the
Commission for amendments or supplements to the Registration Statement or the
prospectus included therein or for additional information;
(iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose, of the issuance
by the Commission of a notification of objection to the use of the form on which
the Registration Statement has been filed, and of the happening of any event
that causes the Company to become an “ineligible issuer,” as defined in
Commission Rule 405.
(iv) of the receipt by the
Company or its legal counsel of any notification with respect to the suspension
of the qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any
event that requires the Company to make changes in the Registration Statement or
the prospectus in order that the Registration Statement or the prospectus does
not contain an untrue statement of a material fact nor omit to state a material
fact required to be stated therein or necessary to make the statements therein
(in the case of the prospectus, in light of the circumstances under which they
were made) not misleading.
(c) The Company and the
Guarantors shall use commercially reasonable efforts to obtain the withdrawal at
the earliest possible time, of any order suspending the effectiveness of the
Registration Statement.
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(d) If not otherwise
available on the Commission’s Electronic Data Gathering, Analysis and Retrieval
(“XXXXX”) System, the Company and the Guarantors shall furnish to each Holder of
Securities included within the coverage of the Shelf Registration, without
charge, at least one copy of the Shelf Registration Statement and any
post-effective amendment or supplement thereto, including financial statements
and schedules, and, if the Holder so requests in writing, all exhibits thereto
(including those, if any, incorporated by reference). The Company
shall not, without the prior consent of the Initial Purchasers, and each Initial
Purchaser shall not, without the prior written consent of the Company, make any
offer relating to the Securities that would constitute a “free writing
prospectus,” as defined in Commission Rule 405.
(e) If not otherwise
available on the Commission’s XXXXX System, the Company and the Guarantors shall
deliver to each Exchanging Dealer and each Initial Purchaser, and to any other
Holder who so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if any Initial Purchaser or any such
Holder requests, all exhibits thereto (including those incorporated by
reference).
(f) The Company and the
Guarantors shall, during the Shelf Registration Period, deliver to each Holder
of Securities included within the coverage of the Shelf Registration, without
charge, as many copies of the prospectus (including each preliminary prospectus)
included in the Shelf Registration Statement and any amendment or supplement
thereto as such person may reasonably request. The Company consents, subject to
the provisions of this Agreement, to the use of the prospectus or any amendment
or supplement thereto by each of the selling Holders of the Securities in
connection with the offering and sale of the Securities covered by the
prospectus, or any amendment or supplement thereto, included in the Shelf
Registration Statement.
(g) The Company and the
Guarantors shall deliver to each Initial Purchaser, any Exchanging Dealer, any
Participating Broker-Dealer and such other persons required to deliver a
prospectus following the Registered Exchange Offer, without charge, as many
copies of the final prospectus included in the Exchange Offer Registration
Statement and any amendment or supplement thereto as such persons may reasonably
request. The Company consents, subject to the provisions of this
Agreement, to the use of the prospectus or any amendment or supplement thereto
by any Initial Purchaser, if necessary, any Participating Broker-Dealer and such
other persons required to deliver a prospectus following the Registered Exchange
Offer in connection with the offering and sale of the Exchange Securities
covered by the prospectus, or any amendment or supplement thereto, included in
such Exchange Offer Registration Statement.
(h) Prior to any public
offering of the Securities, pursuant to any Registration Statement, the Company,
on behalf of itself and the Guarantors, shall use their commercially reasonable
efforts to register or qualify or cooperate with the Holders of the Securities
included therein and their respective counsel in connection with the
registration or qualification of the Securities for offer and sale under the
securities or “blue sky” laws of such states of the United States as any Holder
of the Securities reasonably requests in writing and do any and all other acts
or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities covered by such Registration Statement;
provided, however, that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so qualified
or (ii) take any action which would subject it to general service of process or
to taxation in any jurisdiction where it is not then so subject.
(i) The Company and the Guarantors
shall cooperate with the Holders of the Securities to facilitate the timely
preparation and delivery of certificates representing the Securities to be sold
pursuant to any Registration Statement free of any restrictive legends and in
such denominations
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and
registered in such names as the Holders may request a reasonable period of time
prior to sales of the Securities pursuant to such Registration
Statement.
(j) Upon the occurrence of
any event contemplated by paragraphs (ii) through (v) of Section 3(b) above
during the period for which the Company is required to maintain an effective
Registration Statement, the Company and the Guarantors shall promptly prepare
and file a post-effective amendment to the Registration Statement or a
supplement to the related prospectus and any other required document so that, as
thereafter delivered to Holders of the Securities or purchasers of Securities,
the prospectus will not contain an 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. If the Company notifies the Initial Purchasers,
the Holders of the Securities and any known Participating Broker-Dealer in
accordance with paragraphs (ii) through (v) of Section 3(b) above to suspend the
use of the prospectus until the requisite changes to the prospectus have been
made, then the Initial Purchasers, the Holders of the Securities and any such
Participating Broker-Dealers shall suspend use of such prospectus, and the
period of effectiveness of the Shelf Registration Statement provided for in
Section 2(b) above and the Exchange Offer Registration Statement provided for in
Section 1 above shall each be extended by the number of days from and including
the date of the giving of such notice to and including the date when the Initial
Purchasers, the Holders of the Securities and any known Participating
Broker-Dealer shall have received such amended or supplemented prospectus
pursuant to this Section 3(j). During the period during which the
Company is required to maintain an effective Shelf Registration Statement
pursuant to this Agreement, the Company and the Guarantors will, prior to the
three-year expiration of that Shelf Registration Statement file, and use their
commercially reasonable efforts to cause to be declared effective (unless it
becomes effective automatically upon filing) within a period that avoids any
interruption in the ability of Holders of Securities covered by the expiring
Shelf Registration Statement to make registered dispositions, a new registration
statement relating to the Securities, which shall be deemed the “Shelf
Registration Statement” for purposes of this Agreement; provided that the Company
shall not be obligated to keep the Shelf Registration Statement effective beyond
the period specified in Section 2(b).
(k) Not later than the
effective date of the applicable Registration Statement, the Company and the
Guarantors will provide a CUSIP number or CUSIP numbers for the Initial
Securities, the Exchange Securities or the Private Exchange Securities, as the
case may be, and provide the applicable trustee with printed certificates for
the Initial Securities, the Exchange Securities or the Private Exchange
Securities, as the case may be, in a form eligible for deposit with The
Depository Trust Company.
(l) The Company and the
Guarantors will comply with all rules and regulations of the Commission to the
extent and so long as they are applicable to the Registered Exchange Offer or
the Shelf Registration and will make generally available to its security holders
(or otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the Company’s
first fiscal quarter commencing after the effective date of the Registration
Statement, which statement shall cover such 12-month period.
(m) The Company and the
Guarantors shall cause the Indenture to be qualified under the Trust Indenture
Act of 1939, as amended (the “Trust Indenture Act”), in a timely manner and
containing such changes, if any, as shall be necessary for such
qualification. In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall appoint a
new trustee thereunder pursuant to the applicable provisions of the
Indenture.
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(n) The Company may require
each Holder of Securities to be sold pursuant to the Shelf Registration
Statement to furnish to the Company such information regarding the Holder and
the distribution of the Securities as the Company may from time to time
reasonably require for inclusion in the Shelf Registration Statement, and the
Company may exclude from such registration the Securities of any Holder that
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
(o) The Company shall enter
into such customary agreements (including, if requested, an underwriting
agreement in customary form) and take all such other action, if any, as the
Holders of at least 10% of the aggregate principal amount of Securities covered
by a Shelf Registration shall reasonably request in order to facilitate the
disposition of the Securities pursuant to any Shelf Registration.
(p) In the case of any Shelf
Registration, the Company and the Guarantors, as applicable, shall (i) make
reasonably available for inspection by the Holders of the Securities, any
underwriter participating in any disposition pursuant to the Shelf Registration
Statement and any attorney, accountant or other agent retained by the Holders of
the Securities or any such underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company and (ii) cause the
Company’s officers, directors, employees, accountants and auditors to supply all
relevant information reasonably requested by the Holders of the Securities or
any such underwriter, attorney, accountant or agent in connection with the Shelf
Registration Statement, in each case, as shall be reasonably necessary to enable
such persons, to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however, that the foregoing
inspection and information gathering shall be coordinated on behalf of the
Initial Purchasers by Credit Suisse and on behalf of the other parties, by one
counsel designated by and on behalf of such other parties as described in
Section 4 hereof; provided
further, however, that the conduct of
the foregoing inspection and information gathering shall be subject to the
execution by all persons party to such inspection and information gathering of a
reasonable confidentiality agreement in customary form with respect to
confidential and proprietary information of the Company.
(q) In the case of any Shelf
Registration, the Company, if requested by any Holder of Securities covered
thereby, shall cause (i) its counsel to deliver an opinion and updates
thereof relating to the Securities in customary form addressed to such Holders
and the managing underwriters, if any, thereof and dated, in the case of the
initial opinion, the effective date of such Shelf Registration Statement (it
being agreed that the matters to be covered by such opinion shall include,
without limitation, the due incorporation and good standing of the Company and
its subsidiaries; the qualification of the Company and its subsidiaries to
transact business as foreign corporations; the due authorization, execution and
delivery of the relevant agreement of the type referred to in Section 3(o)
hereof; the due authorization, execution, authentication and issuance, and the
validity and enforceability, of the applicable Securities; the absence of
material legal or governmental proceedings involving the Company and its
subsidiaries; the absence of governmental approvals required to be obtained in
connection with the Shelf Registration Statement, the offering and sale of the
applicable Securities, or any agreement of the type referred to in
Section 3(o) hereof; the compliance as to form of such Shelf Registration
Statement and any documents incorporated by reference therein and of the
Indenture with the requirements of the Securities Act and the Trust Indenture
Act, respectively; and (A) as of the date of the opinion and as of the
effective date of the Shelf Registration Statement or most recent post-effective
amendment thereto, as the case may be, the absence from such Shelf Registration
Statement and the prospectus included therein, as then amended or supplemented,
and from any documents incorporated by reference therein and (B) as of an
applicable time identified by such Holders or managing underwriters, the absence
from such prospectus taken together with any other documents
9
identified
by such Holders or managing underwriters, in the case of (A) and (B),
of an untrue statement of a material fact or the omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading (in the case of any such incorporated documents, in the
light of the circumstances existing at the time that such documents were filed
with the Commission under the Exchange Act); (ii) its officers to execute
and deliver all customary documents and certificates and updates thereof
requested by any underwriters of the applicable Securities and (iii) its
independent public accountants and the independent public accountants with
respect to any other entity for which financial information is provided in the
Shelf Registration Statement to provide to the selling Holders of the applicable
Securities and any underwriter therefor a comfort letter in customary form and
covering matters of the type customarily covered in comfort letters in
connection with primary underwritten offerings, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by Statement
of Auditing Standards No. 72 and any other applicable
pronouncements.
(r) In the case of the
Registered Exchange Offer, if requested by any Initial Purchaser or any known
Participating Broker-Dealer, the Company shall cause (i) its counsel to deliver
to such Initial Purchaser or such Participating Broker-Dealer a signed opinion
in the form set forth in Section 7(d) of the Purchase Agreement with such
changes as are customary in connection with the preparation of a Registration
Statement and (ii) its independent public accountants and the independent public
accountants with respect to any other entity for which financial information is
provided in the Registration Statement to deliver to such Initial Purchaser or
such Participating Broker-Dealer a comfort letter, in customary form, meeting
the requirements as to the substance thereof as set forth in Section 7(a)
of the Purchase Agreement, with appropriate date changes.
(s) If a Registered Exchange
Offer or a Private Exchange is to be consummated, upon delivery of the Initial
Securities by Holders to the Company (or to such other Person as directed by the
Company) in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, the Company shall mark, or caused to be marked,
on the Initial Securities so exchanged that such Initial Securities are being
canceled in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be; in no event shall the Initial Securities be
marked as paid or otherwise satisfied.
(t) The Company and the
Guarantors will use their commercially reasonable efforts to (a) if the Initial
Securities have been rated prior to the initial sale of such Initial Securities,
confirm such ratings will apply to the Securities covered by a Registration
Statement, or (b) if the Initial Securities were not previously rated, cause the
Securities covered by a Registration Statement to be rated with the appropriate
rating agencies, if so requested by Holders of a majority in aggregate principal
amount of Securities covered by such Registration Statement, or by the managing
underwriters, if any.
(u) In the event that any
broker-dealer registered under the Exchange Act shall underwrite any Securities
or participate as a member of an underwriting syndicate or selling group or
“assist in the distribution” (within the meaning of the Conduct Rules (the
“Rules”) of the Financial Industry Regulatory Authority (“FINRA”)) thereof,
whether as a Holder of such Securities or as an underwriter, a placement or
sales agent or a broker or dealer in respect thereof, or otherwise, the Company
and the Guarantors will assist such broker-dealer in complying with the
requirements of such Rules, including, without limitation, by (i) if such
Rules, including Rule 2720, shall so require, engaging a “qualified independent
underwriter” (as defined in Rule 2720) to participate in the preparation of the
Registration Statement relating to such Securities, to exercise usual standards
of due diligence in respect thereto and, if any portion of the offering
contemplated by such Registration Statement is an underwritten offering or is
made through a placement or sales agent, to recommend the yield of such
Securities, (ii) indemnifying any such qualified independent
10
underwriter
to the extent of the indemnification of underwriters provided in Section 5
hereof and (iii) providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the requirements of the
Rules.
(v) The Company and the
Guarantors shall use their commercially reasonable efforts to take all other
steps necessary to effect the registration of the Securities covered by a
Registration Statement contemplated hereby.
4. Registration
Expenses. The Company and the Guarantors shall bear all fees
and expenses incurred in connection with the performance of its obligations
under Sections 1 through 3 hereof (including the reasonable fees and expenses,
if any, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Initial
Purchasers, incurred in connection with the Registered Exchange Offer), whether
or not the Registered Exchange Offer or a Shelf Registration is filed or becomes
effective, and, in the event of a Shelf Registration, shall bear or reimburse
the Holders of the Securities covered thereby for the reasonable fees and
disbursements of one firm of counsel designated by the Holders of a majority in
principal amount of the Initial Securities covered thereby to act as counsel for
the Holders of the Initial Securities in connection therewith.
5. Indemnification. (a) The
Company and the Guarantors, jointly and severally, agree to indemnify and hold
harmless each Holder of the Securities, any Participating Broker-Dealer and each
person, if any, who controls such Holder or such Participating Broker-Dealer
within the meaning of the Securities Act or the Exchange Act (each Holder, any
Participating Broker-Dealer and such controlling persons are referred to
collectively as the “Indemnified Parties”) from and against any losses, claims,
damages or liabilities, joint or several, or any actions in respect thereof
(including, but not limited to, any losses, claims, damages, liabilities or
actions relating to purchases and sales of the Securities) to which each
Indemnified Party may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in a Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus or “issuer free
writing prospectus,” as defined in Commission Rule 433 (“Issuer FWP”),
relating to a Shelf Registration, or arise out of, or are based upon, the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, and shall reimburse, as
incurred, the Indemnified Parties for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; provided, however, that
(i) the Company shall not be liable in any such case to the extent that
such loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus or Issuer FWP relating to a Shelf Registration
in reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein and (ii) with respect to any untrue statement or
omission or alleged untrue statement or omission made in any preliminary
prospectus relating to a Shelf Registration Statement, the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any
Holder or Participating Broker-Dealer from whom the person asserting any such
losses, claims, damages or liabilities purchased the Securities concerned, to
the extent that a prospectus relating to such Securities was required to be
delivered (including through satisfaction of the conditions of Commission
Rule 172) by such Holder or Participating Broker-Dealer under the
Securities Act in connection with such purchase and any such loss, claim, damage
or liability of such Holder or Participating Broker-Dealer results from the fact
that there was not conveyed to such person, at or prior to the time of the sale
of such Securities to such person, an amended or supplemented prospectus or, if
permitted by Section 3(d) hereof, an Issuer FWP correcting such untrue
statement or omission or alleged untrue statement or omission if the Company and
the Guarantors had previously furnished copies thereof to such Holder or
Participating Broker-Dealer; provided further, however, that this indemnity
11
agreement
will be in addition to any liability which the Company and the Guarantors may
otherwise have to such Indemnified Party. The Company and the
Guarantors shall also indemnify underwriters, their officers and directors and
each person who controls such underwriters within the meaning of the Securities
Act or the Exchange Act to the same extent as provided above with respect to the
indemnification of the Holders of the Securities if requested by such
Holders.
(b) Each Holder of the
Securities, severally and not jointly, will indemnify and hold harmless the
Company and the Guarantors and each person, if any, who controls the Company and
the Guarantors within the meaning of the Securities Act or the Exchange Act from
and against any losses, claims, damages or liabilities or any actions in respect
thereof, to which the Company, the Guarantors or any such controlling person may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement or prospectus or in any amendment or
supplement thereto or in any preliminary prospectus or Issuer FWP relating to a
Shelf Registration, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein; and, subject to the limitation set forth immediately
preceding this clause, shall reimburse, as incurred, the Company or the
Guarantors, as the case may be, for any legal or other expenses reasonably
incurred by the Company, the Guarantors or any such controlling person in
connection with investigating or defending any loss, claim, damage, liability or
action in respect thereof. This indemnity agreement will be in
addition to any liability which such Holder may otherwise have to the Company,
the Guarantors or any of their controlling persons.
(c) Promptly after receipt
by an indemnified party under this Section 5 of notice of the commencement of
any action or proceeding (including a governmental investigation), such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 5, notify the indemnifying party of the
commencement thereof; but the failure to notify the indemnifying party shall not
relieve the indemnifying party from any liability that it may have under
subsection (a) or (b) above except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such
failure; and provided further that the failure to notify the indemnifying party
shall not relieve it from any liability that it may have to an indemnified party
otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 5 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action, and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If the indemnification
provided for in this Section 5 is unavailable or insufficient to hold harmless
an indemnified party under subsections (a) or (b) above, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of the losses, claims,
12
damages
or liabilities (or actions in respect thereof) referred to in subsection (a) or
(b) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the exchange of the Securities, pursuant to
the Registered Exchange Offer, or (ii) if the allocation provided by the
foregoing clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the indemnifying party or parties on
the one hand and the indemnified party on the other in connection with the
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 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 Company and the
Guarantors on the one hand or such Holder or such other indemnified party, as
the case may be, on the other, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection
(d). Notwithstanding any other provision of this Section 5(d), the
Holders of the Securities shall not be required to contribute any amount in
excess of the amount by which the net proceeds received by such Holders from the
sale of the Securities pursuant to a Registration Statement exceeds the amount
of damages which such Holders have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls such indemnified party within the meaning of the Securities
Act or the Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Company or the
Guarantors within the meaning of the Securities Act or the Exchange Act shall
have the same rights to contribution as the Company or the Guarantors, as the
case may be.
(e) The agreements contained
in this Section 5 shall survive the sale of the Securities pursuant to a
Registration Statement and shall remain in full force and effect, regardless of
any termination or cancellation of this Agreement or any investigation made by
or on behalf of any indemnified party.
6. Additional Interest Under Certain
Circumstances. (a) Additional interest (the
“Additional Interest”) with respect to the Transfer Restricted Securities shall
be assessed as follows if any of the following events occur (each such event in
clauses (i) through (iv) below constitutes a “Registration
Default”):
(i) any Registration
Statement required by this Agreement is not filed with the Commission on or
prior to the applicable filing deadlines as described herein;
(ii) any Registration
Statement required by this Agreement is not declared effective by the Commission
on or prior to the applicable effectiveness deadlines as described
herein;
(iii) the Company and the
Guarantors fail to consummate the Registered Exchange Offer within 240 days (or,
if the Commission elects to review the Exchange Offer Registration Statement,
within 300 days) of the Issue Date; or
(iv) any Registration Statement
required by this Agreement is declared (or becomes automatically) effective but
(A) such Registration Statement thereafter ceases to be effective during
the period specified in Section 1 and Section 2(b) of this Agreement, except, in
the case of the Exchange Offer Registration Statement, following the
consummation of the Exchange Offer
13
with
respect to all Securities tendered in connection therewith prior to the
expiration of the Exchange Offer or (B) such Registration Statement or the
related prospectus ceases to be usable (except as permitted in
paragraph (b)) in connection with resales or exchanges of Transfer
Restricted Securities during the periods specified herein because either
(1) any event occurs as a result of which the related prospectus forming
part of such Registration Statement would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, (2) it shall be necessary to amend such Registration
Statement or supplement the related prospectus, to comply with the Securities
Act or the Exchange Act or the respective rules thereunder, or (3) such
Registration Statement is a Shelf Registration Statement that has expired before
a replacement Shelf Registration Statement has become effective; provided that Additional
Interest is payable in respect of only one (1) Registration Default at any
time.
Additional Interest shall accrue on the
Transfer Restricted Securities over and above the interest set forth in the
title of the Transfer Restricted Securities from and including the date on which
any such Registration Default shall occur to but excluding the date on which all
such Registration Defaults have been cured, at a rate of (i) 0.25% per annum of
the principal amounts of Transfer Restricted Securities for the first 90-day
period immediately following such Registration Default; (ii) 0.50% per annum of
the principal amounts of Transfer Restricted Securities for the second 90-day
period immediately following such Registration Default; (iii) 0.75% per annum of
the principal amounts of Transfer Restricted Securities for the third 90-day
period immediately following such Registration Default; and (iv) 1.00% per annum
of the principal amounts of Transfer Restricted Securities for the fourth 90-day
period and thereafter immediately following such Registration
Default.
(b) A Registration Default
referred to in Section 6(a)(iv)(B) hereof shall be deemed not to have
occurred and be continuing in relation to a Shelf Registration Statement or the
related prospectus if (i) such Registration Default has occurred solely as
a result of (x) the filing of a post-effective amendment to such Shelf
Registration Statement to incorporate annual audited financial information with
respect to the Company where such post-effective amendment is not yet effective
and needs to be declared effective to permit Holders to use the related
prospectus or (y) other material events with respect to the Company that would
need to be described in such Shelf Registration Statement or the related
prospectus and (ii) in the case of clause (y), the Company is proceeding
promptly and in good faith to amend or supplement such Shelf Registration
Statement and related prospectus to describe such events; provided, however, that in any case if
such Registration Default occurs for a continuous period in excess of 45 days,
Additional Interest shall be payable in accordance with the above paragraph from
the day such Registration Default occurs until such Registration Default is
cured.
(c) Any amounts of
Additional Interest due pursuant to Section 6(a) above will be payable in cash
on the regular interest payment dates with respect to the Transfer Restricted
Securities and will be payable through the payment methods as set forth in the
Indenture. The amount of Additional Interest will be determined by multiplying
the applicable Additional Interest rate by the principal amount of the Transfer
Restricted Securities, 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 the denominator of which is 360.
(d) “Transfer Restricted
Securities” means each Security until (i) the date on which such Security has
been exchanged by a person other than a broker-dealer for a freely transferable
Exchange Security in the Registered Exchange Offer, (ii) following the exchange
by a broker-dealer in the Registered Exchange Offer of an Initial Security for
an Exchange Security, the date on which such Exchange Security is sold to a
purchaser who receives from such broker-dealer on or prior to the date of such
sale a copy of the prospectus contained in the Exchange Offer Registration
Statement, (iii) the date on which such Security has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration
14
Statement
or (iv) the date on which such Security is distributed to the public pursuant to
Rule 144 under the Securities Act or is saleable pursuant to Rule 144(d) under
the Securities Act.
7. Rules 144 and
144A. The Company and the Guarantors shall use their
commercially reasonable efforts to file the reports required to be filed by them
under the Securities Act and the Exchange Act in a timely manner and, if at any
time the Company is not required to file such reports, the Company and the
Guarantors will, upon the request of any Holder of Securities that are
“restricted securities” within the meaning of Rule 144 and are not saleable
pursuant to Rule 144(d), make publicly available other information so long as
necessary to permit sales of their Securities pursuant to Rules 144 and
144A. The Company and the Guarantors covenant that they will take
such further action as any Holder of Securities may reasonably request, all to
the extent required from time to time to enable such Holder to sell Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rules 144 and 144A (including the requirements of
Rule 144A(d)(4)). The Company, on behalf of itself and the
Guarantors, will provide a copy of this Agreement to prospective purchasers of
Initial Securities identified to the Company by the Initial Purchasers upon
request. Upon the request of any Holder of Initial Securities, the
Company shall deliver to such Holder a written statement as to whether it has
complied with such requirements. Notwithstanding the foregoing, nothing in this
Section 7 shall be deemed to require the Company to register any of its
securities pursuant to the Exchange Act.
8. Underwritten
Registrations. If any of the Transfer Restricted Securities
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
administer the offering (“Managing Underwriters”) will be selected by the
Holders of a majority in aggregate principal amount of such Transfer Restricted
Securities to be included in such offering.
No person may participate in any
underwritten registration hereunder unless such person (i) agrees to sell such
person’s Transfer Restricted Securities on the basis reasonably provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
9. Miscellaneous.
(a) Remedies. The
Company and the Guarantors acknowledge and agree that any failure by the Company
and the Guarantors to comply with their obligations under Section 1 and 2 hereof
may result in material irreparable injury to the Initial Purchasers or the
Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchasers or any Holder may obtain such relief
as may be required to specifically enforce the Company’s and the Guarantors’
obligations under Sections 1 and 2 hereof. The Company and the Guarantors
further agree to waive the defense in any action for specific performance that a
remedy at law would be adequate. The Initial Purchasers and the Holders
acknowledge and agree that the Additional Interest provided by Section 6 of this
Agreement shall be the exclusive monetary remedy available to Holders for any
Registration Default.
(b) 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 by the Company and the written
consent of the Holders of a majority in principal amount of the Transfer
Restricted Securities affected by such amendment, modification, supplement,
waiver or consents.
(c) Notices. All
notices and other communications provided for or permitted hereunder shall be
made in writing by hand delivery, first-class mail, facsimile transmission, or
air courier which guarantees overnight delivery:
15
(1) if to a Holder of the
Securities, at the most current address given by such Holder to the
Company.
(2) if to the Initial
Purchasers;
Credit Suisse Securities (USA)
LLC
Xxxxxx Xxxxxxx Xxxxxx
Fax
No.: (000) 000-0000
Attention: Transactions
Advisory Group
with a copy to:
Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP
000 X. Xxxxxx Xxxxx
Suite 2700
Chicago, Illinois
00000-0000
Fax No.: (000)
000-0000
Attention: Xxxxxxx X. Xxxxxx,
Esq.
(3) if
to the Company, at its address as follows:
ACCO Brands Corporation
000 Xxxxx Xxxxxxx
Lincolnshire, Illinois
60069
Attention: Xxxx Xxxxxxx
with a copy to:
Xxxxxx Price P.C.
000 X. XxXxxxx Xxxxxx
Suite 2600
Chicago, Illinois
00000-0000
Fax No.: (000) 000-0000
Attention: Xxxx X.
Xxxxxxxxxx
All such notices and communications
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; three business days after being deposited in the mail,
postage prepaid, if mailed; when receipt is acknowledged by recipient’s
facsimile machine operator, if sent by facsimile transmission; and on the day
delivered, if sent by overnight air courier guaranteeing next day
delivery.
(d) No Inconsistent
Agreements. The Company has not, as of the date hereof,
entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions
hereof.
(e) Successors and
Assigns. This Agreement shall be binding upon the Company and
the Guarantors and their respective successors and assigns.
16
(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 WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
(i) Severability. If
any one or more of the provisions contained herein, or the application thereof
in any circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be affected or impaired
thereby.
(j) Securities Held by the
Company. Whenever the consent or approval of Holders of a
specified percentage of principal amount of Securities is required hereunder,
Securities held by the Company or its affiliates (other than subsequent Holders
of Securities if such subsequent Holders are deemed to be affiliates solely by
reason of their holdings of such Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
[Signature
pages follow]
17
If the foregoing is in accordance with
your understanding of our agreement, please sign and return to the Company a
counterpart hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement among the several Initial Purchasers, the Company and
the Guarantors in accordance with its terms.
|
Very
truly yours,
|
|||
|
ACCO
Brands Corporation
|
|||
|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
|
Title: Senior Vice President,
Secretary
and General Counsel
|
|||
|
ACCO
Brands USA LLC
|
|||
|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Vice President and Secretary | |||
|
Day-Timers
Inc.
|
|||
|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Vice President and Secretary | |||
|
General
Binding Corporation
|
|||
|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Vice President and Secretary | |||
|
ACCO
International Holdings, Inc.
|
|||
|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Vice President and Secretary | |||
|
GBC
International, Inc.
|
|||
|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Vice President and Secretary | |||
|
ACCO
Brands International, Inc.
|
|||
|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Vice President and Secretary | |||
|
ACCO
Europe Finance Holdings, LLC
|
|||
|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Vice President and Secretary | |||
|
ACCO
Europe International Holdings LLC
|
|||
|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Vice President and Secretary | |||
|
Swingline
Inc.
|
|||
|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Vice President and Secretary | |||
|
Polyblend
Corporation
|
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|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Vice President and Secretary | |||
|
Xxxxx
International, Inc.
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By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Vice President and Secretary | |||
The
foregoing Registration
Rights
Agreement is hereby confirmed
and
accepted as of the date first
above
written.
|
By
Credit
Suisse Securities (USA) LLC
|
|||
|
|
By:
|
/s/Xxxx Xxxxxxxx | |
| Name: | Xxxx Xxxxxxxx | ||
| Title: | Director | ||
|
By
Deutsche Bank Securities Inc.
|
|||
|
|
By:
|
/s/Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | ||
| Title: | Managing Director | ||
|
|
By:
|
/s/Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | ||
| Title: | Managing Director | ||
|
By
Banc
of America Securities LLC
|
|||
|
|
By:
|
/s/Xxxxxx X. Xxxxx | |
| Name: | Xxxxxx X. Xxxxx | ||
| Title: | Managing Director | ||
|
By
BMO Capital Markets Corp.
|
|||
|
|
By:
|
/s/Xxxxx X. Xxxx | |
| Name: | Xxxxx X. Xxxx | ||
| Title: | Managing Director | ||
|
By
Barclays Capital Inc.
|
|||
|
|
By:
|
/s/Xxxxxxxx Xxxxxx | |
| Name: | Xxxxxxxx Xxxxxx | ||
| Title: | Director | ||
|
By
Barrington Research Associates, Inc.
|
|||
|
|
By:
|
/s/Xxxxxxx Xxxxx | |
| Name: | Xxxxxxx Xxxxx | ||
| Title: | Vice President and Treasurer | ||
|
By
CJS Securities, Inc.
|
|||
|
|
By:
|
/s/Xxxxxxx Xxxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxx | ||
| Title: | Senior Managing Director | ||
|
By
SunTrust
Xxxxxxxx Xxxxxxxx, Inc.
|
|||
|
|
By:
|
/s/Xxxxxxxxxxx X. Xxxx | |
| Name: | Xxxxxxxxxxx X. Xxxx | ||
| Title: | Managing Director | ||
ANNEX A
Each broker-dealer that receives
Exchange Securities for its own account pursuant to the Exchange Offer must
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Securities. The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an “underwriter” within the meaning of the Securities
Act. This Prospectus, as it may be amended or supplemented from time
to time, may be used by a broker-dealer in connection with resales of Exchange
Securities received in exchange for Initial Securities where such Initial
Securities were acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Company has agreed that,
for a period of 180 days after the Expiration Date (as defined herein), it will
make this Prospectus available to any broker-dealer for use in connection with
any such resale. See “Plan of Distribution.”
ANNEX B
Each broker-dealer that receives
Exchange Securities for its own account in exchange for Initial Securities,
where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange
Securities. See “Plan of Distribution.”
ANNEX C
PLAN OF
DISTRIBUTION
Each broker-dealer that receives
Exchange Securities for its own account pursuant to the Exchange Offer must
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Securities. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Initial Securities
where such Initial Securities were acquired as a result of market-making
activities or other trading activities. The Company has agreed that,
for a period of 180 days after the Expiration Date, it will make this
prospectus, as amended or supplemented, available to any broker-dealer for use
in connection with any such resale. In addition,
until ,
200 , all dealers effecting transactions in the Exchange Securities
may be required to deliver a prospectus.
The Company will not receive any
proceeds from any sale of Exchange Securities by
broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or
through brokers or dealers who may receive compensation in the form of
commissions or concessions from any such broker-dealer or the purchasers of any
such Exchange Securities. Any broker-dealer that resells Exchange
Securities that were received by it for its own account pursuant to the Exchange
Offer and any broker or dealer that participates in a distribution of such
Exchange Securities may be deemed to be an “underwriter” within the meaning of
the Securities Act and any profit on any such resale of Exchange Securities and
any commission or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The Letter of
Transmittal states that, by acknowledging that it will deliver and by delivering
a prospectus, a broker-dealer will not be deemed to admit that it is an
“underwriter” within the meaning of the Securities Act.
For a period of 180 days after the
Expiration Date, the Company will promptly send additional copies of this
Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of
Transmittal. The Company has agreed to pay all expenses incident to
the Exchange Offer (including the expenses of one counsel for the Holders of the
Securities) other than commissions or concessions of any brokers or dealers and
will indemnify the Holders of the Securities (including any broker-dealers)
against certain liabilities, including liabilities under the Securities
Act.
ANNEX D
¨ CHECK HERE IF YOU ARE A
BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10
COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name: ____________________________________________
Address:
___________________________________________
___________________________________________
If the
undersigned is not a broker-dealer, the undersigned represents that it is not
engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive
Exchange Securities for its own account in exchange for Initial Securities that
were acquired as a result of market-making activities or other trading
activities, it acknowledges that it will deliver a prospectus in connection with
any resale of such Exchange Securities; however, by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed to admit that it is
an “underwriter” within the meaning of the Securities Act.
SCHEDULE
A
|
|
ACCO
Brands USA LLC
|
|
|
Day-Timers
Inc.
|
|
|
General
Binding Corporation
|
|
|
ACCO
International Holdings, Inc.
|
| GBC International, Inc. | |
| ACCO Brands International, Inc. | |
| ACCO Europe Finance Holdings, LLC | |
| ACCO Europe International Holdings LLC | |
| Swingline Inc. | |
| Polyblend Corporation | |
| Xxxxx International, Inc. |
