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EXHIBIT 4.3
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10 1/8% SENIOR NOTES DUE 2007
REGISTRATION RIGHTS AGREEMENT
Dated December 11, 1997
by and among
WALBRO CORPORATION,
WALBRO AUTOMOTIVE CORPORATION,
WALBRO ENGINE MANAGEMENT CORPORATION,
XXXXXX MANUFACTURING COMPANY,
XXXXXXXXX ENGINEERED PRODUCTS, INC.
and
SALOMON BROTHERS INC
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This Registration Rights Agreement is made and entered into this 11th day
of December, 1997, by and among Walbro Corporation, a Delaware corporation (the
"Company"), Walbro Automotive Corporation, a Delaware corporation, Walbro
Engine Management Corporation, a Delaware corporation, Xxxxxx Manufacturing
Company, a Michigan corporation, Xxxxxxxxx Engineered Products, Inc., a
Delaware corporation (the "Guarantors" and, together with the Company, the
"Issuers"), and Salomon Brothers Inc (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement, dated December
11, 1997, among the Company, the Guarantors and Initial Purchaser (the
"Purchase Agreement"). In order to induce the Initial Purchaser to enter into
the Purchase Agreement, the Issuers have agreed to provide the registration
rights provided for in this Agreement to the Initial Purchaser and its direct
and indirect transferees. The execution and delivery of this Agreement is a
condition to the closing of the transactions contemplated by the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the following
meanings:
Additional Interest: As defined in Section 4(a) hereof.
Advice: As defined in the last paragraph of Section 5 hereof.
Affiliate: With respect to any specified person, "Affiliate" shall mean
any other person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified person. For the purposes
of this definition, "control," when used with respect to any person, means the
power to direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise and the terms "affiliated," controlling" and "controlled" have
meanings correlative to the foregoing.
Agreement: This Registration Rights Agreement, as the same may be
amended, supplemented or modified from time to time in accordance with the
terms hereof.
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Business Day: Any day except a Saturday, a Sunday or a day on which
banking institutions in New York, New York generally are required or authorized
by law or other government action to be closed.
Company: As defined in the preamble hereof.
Consummate or consummate: When used to qualify the term "Exchange Offer"
shall mean validly and lawfully to issue and deliver the Exchange Notes
pursuant to the Exchange Offer for all Notes validly tendered and not validly
withdrawn pursuant thereto in accordance with the terms of this Agreement.
Consummation Date: The date that is 20 Business Days immediately
following the date that the Exchange Registration Statement shall have been
declared effective by the SEC.
Effectiveness Period: As defined in Section 3(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the SEC pursuant thereto.
Exchange Date: As defined in Section 2(d) hereof.
Exchange Notes: The 10 1/8% Senior Notes due 2007, Series B, of the
Company, guaranteed on a senior unsecured basis by each of the Guarantors, that
are identical to the Notes in all material respects, except that the provisions
regarding restrictions on transfer shall be modified, as appropriate, and the
issuance thereof pursuant to the Exchange Offer shall have been registered
pursuant to an effective Registration Statement in compliance with the
Securities Act.
Exchange Offer: An offer to issue, in exchange for any and all of the
Notes, a like aggregate principal amount of Exchange Notes, which offer shall
be made by the Company pursuant to Section 2 hereof.
Exchange Registration Statement: As defined in Section 2(a) hereof.
Guarantors: As defined in the preamble hereof.
Indemnified Person: As defined in Section 7(a) hereof.
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Indenture: The Indenture, dated as of December 15, 1997, among the
Issuers and Bankers Trust Company, as trustee thereunder, pursuant to which the
Notes are issued, as amended or supplemented from time to time in accordance
with the terms thereof.
Initial Purchaser: As defined in the preamble hereof.
Issue Date: As defined in Section 2(a).
Issuers: As defined in the preamble hereof.
Notes: The 10 1/8% Senior Notes due 2007, Series A, of the Company,
guaranteed on a senior unsecured basis by each of the Guarantors, issued
pursuant to the Indenture.
Participating Broker-Dealer: As defined in Section 2(e) hereof.
Private Exchange: As defined in Section 2(c) hereof.
Private Exchange Notes: As defined in Section 2(c) hereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated pursuant to the Securities
Act), as amended or supplemented by any prospectus supplement, with respect to
the terms of the offering of any portion of the Notes, Exchange Notes or
Private Exchange Notes covered by such Registration Statement, and all other
amendments and supplements to any such prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such prospectus.
Registration Default: As defined in Section 4(a) hereof.
Registration Statement: Any registration statement of the Company and the
Guarantors that covers any of the Notes, Exchange Notes or Private Exchange
Notes pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto, and all
material incorporated by reference or deemed
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to be incorporated by reference, if any, in such registration statement.
Rule 144: Rule 144 promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 158: Rule 158 promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 174: Rule 174 promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 415: Rule 415 promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 424: Rule 424 promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated by the SEC thereunder.
Shelf Registration: As defined in Section 3 hereof.
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Shelf Registration Statement: As defined in Section 3 hereof.
Special Counsel: Xxxxxx Xxxxxx & Xxxxxxx, special counsel to the holders
of Transfer Restricted Securities, or such other counsel as shall be agreed
upon by the Issuers and holders of a majority in aggregate principal amount of
Transfer Restricted Securities, the expenses of which holders of Transfer
Restricted Securities will be reimbursed by the Issuers pursuant to Section 6.
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Securities: The Notes, upon original issuance
thereof, and at all times subsequent thereto, each Exchange Note as to which
Section 3(a)(iii) 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 3(a)(iii) 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 Registration Statement and
(y) the date on which the Exchange Registration Statement has been effective
under the Securities Act for a period of 6 months after the Consummation Date,
(iii) a Shelf Registration Statement covering such Note, Exchange Note or
Private Exchange Note has been declared effective by the SEC 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 Statement, (iv) the
date on which such Note, Exchange Note or Private Exchange Note, as the case
may be, is distributed to the public pursuant to Rule 144 (or any similar
provisions then in effect) or is saleable pursuant to Rule 144(k) promulgated
by the SEC pursuant to the Securities Act 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.
Trustee: The trustee under the Indenture.
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underwritten registration or underwritten offering: A registration in
connection with which securities are sold to an underwriter for reoffering to
the public pursuant to an effective Registration Statement.
2. Exchange Offer
(a) To the extent not prohibited by any applicable law or applicable
interpretation of the staff of the SEC, the Issuers shall (A) prepare and,
on or prior to 60 days after the date of original issuance of the Notes
(the "Issue Date"), file with the SEC a Registration Statement under the
Securities Act with respect to an offer by the Company to the holders of
the Notes to issue and deliver to such holders, in exchange for Notes, a
like principal amount of Exchange Notes, (B) use their best efforts to
cause the Registration Statement relating to the Exchange Offer to be
declared effective by the SEC under the Securities Act on or prior to 180
days after the Issue Date, and (C) commence the Exchange Offer and use
their best efforts to issue, on or prior to the Consummation Date, the
Exchange Notes. The offer and sale of the Exchange Notes pursuant to the
Exchange Offer shall be registered pursuant to the Securities Act on the
appropriate form (the "Exchange Registration Statement") and duly registered or
qualified under all applicable state securities or Blue Sky laws and will
comply with all applicable tender offer rules and regulations under the
Exchange Act and state securities or Blue Sky laws. The Exchange Offer shall
not be subject to any condition, other than that the Exchange Offer does not
violate any applicable law or interpretation of the staff of the SEC. Upon
consummation of the Exchange Offer in accordance with this Section 2, the
Issuers shall have no further registration obligations other than with respect
to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating
Broker-Dealers and (iii) Notes or Exchange Notes as to which Section 3(a)(iii)
hereof applies. No securities shall be included in the Exchange Registration
Statement other than the Exchange Notes.
(b) The Issuers may require each holder of Notes as a condition to its
participation in the Exchange Offer to represent to the Issuers and their
counsel in writing (which may be contained in the applicable letter of
transmittal) that at the time of the consummation of the Exchange Offer (i)
any Exchange Notes received by such holder 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 (within
the mean-
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ing of the Securities Act) of the Exchange Notes and (iii) such holder is not
an Affiliate of an Issuer, or if it is an Affiliate of an Issuer, it will
comply with the registration and prospectus delivery requirements of the
Securities Act, to the extent applicable.
(c) If, prior to consummation of the Exchange Offer, the Initial
Purchaser holds any Notes acquired by it and having, or which are
reasonably likely to be determined to have, the status of an unsold
allotment in the initial distribution, or any other holder of Notes is not
entitled to participate in the Exchange Offer, the Company upon the request
of the Initial Purchaser or any such holder shall, simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, issue and deliver to
the Initial Purchaser and any such holder, in exchange (the "Private
Exchange") for such Notes held by the Initial Purchaser and any such holder, a
like principal amount of debt securities of the Company, guaranteed by each of
the Guarantors on a senior unsecured basis, that are identical in all material
respects to the Exchange Notes (the "Private Exchange Notes") (and which are
issued pursuant to the same indenture as the Exchange Notes). The Private
Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(d) Unless the Exchange Offer would not be permitted by any applicable
law or interpretation of the staff of the SEC, the Company shall mail the
Exchange Offer Prospectus and appropriate accompanying documents, including
appropriate letters of transmittal, to each holder of Notes providing, in
addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Agreement and that all Notes validly tendered will be accepted
for exchange;
(ii) the date of acceptance for exchange (the "Exchange
Date"), which date shall in no event be later than the
Consummation Date (unless otherwise required by applicable law);
(iii) that holders of Notes electing to have a Note
exchanged pursuant to the Exchange Offer will be required to
surrender such Note, together with the enclosed letters of
transmittal, to the institution and at the address (located in
the Borough of Manhattan, The City of New York) specified in the
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notice prior to the close of business on the Exchange Date; and
(iv) that holders of Notes that do not tender all such
securities pursuant to the Exchange Offer may no longer have any
registration rights hereunder with respect to Notes not tendered.
Promptly after the Exchange Date, the Company shall:
(i) accept for exchange all Notes or portions thereof
validly tendered and not validly withdrawn pursuant to the
Exchange Offer or the Private Exchange; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for
exchange by the Company, and issue, cause the Trustee under the
Indenture (or the indenture pursuant to which the Exchange Notes
are issued) to authenticate, and mail to each holder of Notes,
Exchange Notes equal in principal amount to the principal amount
of the Notes surrendered by such holder.
(e) The Issuers and the Initial Purchaser acknowledge that the staff
of the SEC has taken the position that any broker-dealer that owns Exchange
Notes that were received by such broker-dealer for its own account 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 Purchaser also acknowledge that it is the SEC
staff's position that if the Prospectus contained in the Exchange 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 delivered by
Participating Broker-Dealers to satisfy their prospectus delivery obligations
under the Securities Act in connection with resales of Exchange
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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,
the Issuers agree (x) to use their best efforts to keep the Exchange
Registration Statement continuously effective for a period of up to 6 months or
such earlier date as each Participating Broker-Dealer shall have notified the
Company in writing that such Participating Broker-Dealer has resold all
Exchange Notes acquired in the Exchange Offer, (y) to comply with the
provisions of Section 5 of this Agreement, as they relate to the Exchange Offer
and the Exchange Registration Statement, and (z) to deliver to such
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 Participating Broker-Dealer relating to the Exchange
Registration Statement and the related Prospectus and any amendments or
supplements thereto.
(f) The Initial Purchaser shall have no liability to any Participating
Broker-Dealer with respect to any request made pursuant to Section 2(e).
(g) Interest on the Exchange Notes and the Private Exchange Notes will
accrue from the last interest payment date on which interest was paid on
the Notes surrendered in exchange therefor or, if no interest has been paid
on the Notes, from the date of the original issuance of the Notes.
(h) The Exchange Notes and the Private Exchange Notes may be issued
under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture, which in either event 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 neither the Exchange
Notes, the Private Exchange Notes nor the Notes will have the right to vote
or consent as a separate class on any matter.
3. Shelf Registration
(a) If (i) the Company is not permitted to consummate the Exchange
Offer because the Exchange Offer is not permitted by any applicable law or
applicable interpretation
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of the staff of the SEC or (ii) the Company has not consummated the Exchange
Offer within 210 days of the Issue Date or (iii) any holder of a Note notifies
the Company on or prior to the Exchange Date 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 the Exchange Notes acquired by it in
the Exchange Offer to the public without delivering a prospectus and the
Prospectus contained in the Exchange Registration Statement is not appropriate
or available for such resales by such holder or (C) it is a broker-dealer that
owns Notes (including the Initial Purchaser that holds 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 (iv) any holder of Private
Exchange Notes so requests within 120 days after the consummation of the
Private Exchange (each such event referred to in clauses (i) through (iv), a
"Shelf Filing Event"), the Issuers shall cause to be filed with the SEC
pursuant to Rule 415 a shelf registration statement (the "Shelf Registration
Statement") prior to the later of (x) 60 days after the Issue Date and (y) 30
days after the occurrence of such Shelf Filing Event, relating to all Transfer
Restricted Securities (the "Shelf Registration") the holders of which have
provided the information required pursuant to Section 3(b) hereof, and shall
use their best efforts to have the Shelf Registration Statement declared
effective by the SEC on or prior to the later of (i) 180 days after the Issue
Date and (ii) 90 days after the occurrence of such Shelf Filing Event. In such
circumstances, the Issuers shall use their best efforts to keep the Shelf
Registration Statement continuously effective under the Securities Act, until
(A) 24 months following the date on which the Shelf Registration Statement was
initially declared effective (subject to extension pursuant to the last
paragraph of Section 5 hereof) or (B) if sooner, the date immediately following
the date that all Transfer Restricted Securities covered by the Shelf
Registration Statement have been sold pursuant thereto (the "Effectiveness
Period"); provided that the Effectiveness Period shall be extended to the
extent required to permit dealers to comply with the applicable prospectus
delivery requirements of Rule 174 and as otherwise provided herein.
(b) No holder of Transfer Restricted Securities may include any of its
Transfer Restricted Securities in any Shelf Registration Statement pursuant
to this Agreement unless and until such holder furnishes to the Company in
writing, within 30 days after receipt of a request therefor,
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such information as the Company may reasonably request for use in connection
with any Shelf Registration Statement or Prospectus or preliminary
prospectus included therein. No holder of Transfer Restricted Securities
shall be entitled to Additional Interest pursuant to Section 4 hereof
unless and until such holder shall have provided all such reasonably
requested information. Each holder of Transfer Restricted Securities as to
which any Shelf Registration Statement is being effected agrees to furnish
promptly to the Company all information required to be disclosed in order
to make the information previously furnished to the Company by such holder
not materially misleading.
4. Additional Interest
(a) The parties hereto agree that the holders of Transfer Restricted
Securities will suffer damages if the Issuers fail to fulfill their
obligations pursuant to Section 2 or Section 3, as applicable, and that it
would not be feasible to ascertain the extent of such damages.
Accordingly, in the event that (i) the applicable Registration Statement is
not filed with the SEC on or prior to the date specified herein for such
filing, (ii) the applicable Registration Statement has not been declared
effective by the SEC on or prior to the date specified herein for such
effectiveness after such obligation arises, (iii) if the Exchange Offer is
required to be Consummated hereunder, the Company has not exchanged
Exchange Notes for all Notes validly tendered and not validly withdrawn in
accordance with the terms of the Exchange Offer by the Consummation Date or
(iv) the applicable Registration Statement is filed and declared effective but
shall thereafter cease to be effective without being succeeded immediately
by any additional Registration Statement covering the Notes, the Exchange Notes
or the Private Exchange Notes, as the case may be, which has been filed and
declared effective (each such event referred to in clauses (i) through (iv), a
"Registration Default"), then the interest rate on Transfer Restricted
Securities will increase ("Additional Interest"), with respect to the first
90-day period immediately following the occurrence of such Registration
Default, by 0.50% per annum and will increase by an additional 0.50% per annum
with respect to each subsequent 90-day period until such Registration Default
has been cured, up to a maximum amount of 2% per annum with respect to all
Registration Defaults. Following the cure of a Registration Default, the
accrual of Additional Interest with respect to such Registration Default will
cease and upon the
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cure of all Registration Defaults the interest rate will revert to the original
rate.
(b) The Company shall notify the Trustee and paying agent under the
Indenture (or the trustee and paying agent under such other indenture under
which the Transfer Restricted Securities are issued) immediately upon the
happening of each and every Registration Default. The Company shall pay
the Additional Interest due on the Transfer Restricted Securities by
depositing with the paying agent (which shall not be the Company for these
purposes) for the Transfer Restricted Securities, in trust, for the benefit
of the holders thereof, prior to l1:00 A.M. on the next interest payment
date specified by the Indenture (or such other indenture), sums sufficient
to pay the Additional Interest then due. The Additional Interest due shall
be payable on each interest payment date specified by the Indenture (or
such other indenture) to the record holder entitled to receive the interest
payment to be made on such date. Each obligation to pay Additional
Interest shall be deemed to accrue from and including the applicable
Registration Default.
(c) The parties hereto agree that the Additional Interest provided for
in this Section 4 constitutes a reasonable estimate of the damages that
will be suffered by holders of Transfer Restricted Securities by reason of
the happening of any Registration Default.
5. Registration Procedures
In connection with the Issuers' registration obligations hereunder, the
Issuers shall effect such registrations on the appropriate form available for
the sale of the Notes, the Exchange Notes or Private Exchange Notes, as
applicable, to (i) in the case of the Exchange Offer, permit the exchange of
Exchange Notes for Notes in the Exchange Offer and, if applicable, resales of
Exchange Notes by Participating Broker-Dealers and (ii) in the case of a Shelf
Registration, permit the sale of the applicable Transfer Restricted Securities
in accordance with the method or methods of disposition thereof specified by
the holders of such Transfer Restricted Securities, and pursuant thereto the
Issuers shall as expeditiously as possible:
(a) In the case of a Shelf Registration, a reasonable period of
time prior to the initial filing of a Shelf Registration Statement or
Prospectus and a reasonable period of time prior to the filing of any
amendment or supplement thereto (including any document
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that would be incorporated or deemed to be incorporated therein by
reference), furnish to the holders of the Transfer Restricted Securities
included in such Shelf Registration Statement, their Special Counsel and
the managing underwriters, if any, copies of all such documents proposed
to be filed, which documents (other than those incorporated or deemed to
be incorporated by reference) will be subject to the review of such
holders, their Special Counsel and such underwriters, if any, and cause
the officers and directors of the Issuers, counsel to the Issuers and
independent certified public accountants to the Issuers to respond to
such reasonable inquiries as shall be necessary, in the opinion of
respective counsel to such holders and such underwriters, to conduct a
reasonable investigation within the meaning of the Securities Act;
provided that the Issuers shall not be deemed to have kept a Shelf
Registration Statement effective during the applicable period if any of
them voluntarily takes or fails to take any reasonable action that
results in holders of the Transfer Restricted Securities covered thereby
not being able to sell such Transfer Restricted Securities pursuant to
Federal securities laws during that period (and the time period during
which such Shelf Registration Statement is required to remain effective
hereunder shall be extended by the number of days during which such
holders of Transfer Restricted Securities are not able to sell such
Transfer Restricted Securities). The Issuers shall not file any such
Shelf Registration Statement or related Prospectus or any amendments or
supplements thereto which the holders of a majority of the Transfer
Restricted Securities included in such Shelf Registration Statement shall
reasonably object on a timely basis;
(b) Prepare and file with the SEC such amendments, including
post-effective amendments, to each Registration Statement as may be
necessary to keep such Registration Statement continuously effective
for the applicable time period required hereunder; cause the related
Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424; and comply
with the provisions of the Securities Act and the Exchange Act with
respect to the disposition of all securities covered by such
Registration Statement during such period in accordance with the
intended methods of disposition by the sellers thereof set forth in
such Registration
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Statement as so amended or in such Prospectus as so supplemented;
(c) Notify the holders of Transfer Restricted Securities to be
sold or, in the case of an Exchange Offer, tendered for, their
Special Counsel and the managing underwriters, if any, promptly, and (if
requested by any such person), confirm such notice in writing, (i)(A)
when a Prospectus or any Prospectus supplement or post-effective
amendment is proposed to be filed, and (B) with respect to a Registration
Statement or any post-effective amendment, when the same has become
effective, (ii) of any request by the SEC or any other Federal or state
governmental authority for amendments or supplements to a Registration
Statement or related Prospectus or for additional information, (iii) of
the issuance by the SEC, any state securities commission, any other
governmental agency or any court of any stop order, order or injunction
suspending or enjoining the use of a Prospectus or the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from
qualification of any of the Notes, Exchange Notes or Private Exchange
Notes for sale in any jurisdiction, or the initiation or threatening of
any proceeding for such purpose, and (v) of the happening of any event or
information becoming known that makes any statement made in a
Registration Statement or related Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material
respect or that requires the making of any changes in such Registration
Statement, Prospectus or documents so that it will not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, not
misleading, and that in the case of a 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;
(d) Use their best efforts to avoid the issuance of or, if
issued, obtain the withdrawal of any order enjoining or suspending
the use of a Prospectus or the effectiveness of a Registration Statement
or the lift-
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ing of any suspension of the qualification (or exemption from
qualification) of any of the Notes, Exchange Notes or Private Exchange
Notes for sale in any jurisdiction, at the earliest practicable moment;
(e) If a Shelf Registration Statement is filed pursuant to
Section 3 hereof and if requested by the managing underwriters, if
any, or the holders of a majority in aggregate principal amount of
the Transfer Restricted Securities being sold pursuant to such Shelf
Registration Statement, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information as the
managing underwriters, if any, and such holders reasonably believe
should be included therein, and (ii) make all required filings of
such Prospectus supplement or such post-effective amendment under the
Securities Act as soon as practicable after the Company has 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 pursuant to this
Section 5(e) that would, in the opinion of counsel for the Issuers,
violate applicable law;
(f) Upon written request to the Company, furnish to each holder
of Notes, Exchange Notes or Private Exchange Notes to be exchanged or
sold pursuant to a Registration Statement, their Special Counsel and
each managing underwriter, if any, without charge, at least one
conformed copy of such Registration Statement and each amendment
thereto, including financial statements and schedules, all documents
incorporated or deemed to be incorporated therein by reference, and
all exhibits to the extent requested (including those previously
furnished or incorporated by reference) as soon as practicable after
the filing of such documents with the SEC;
(g) Deliver to each holder of Notes, Exchange Notes or Private
Exchange Notes to be exchanged or sold pursuant to a Registration
Statement, their Special Counsel, and the underwriters, if any, without
charge, as many copies of the Prospectus (including each form of
prospectus) and each amendment or supplement thereto as such persons
reasonably request; and the Issuers hereby consent to the use of such
Prospectus and each amendment or supplement thereto by each of the
selling holders of Transfer Restricted Securities and the un-
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derwriters, if any, in connection with the offering and sale of the
Transfer Restricted Securities covered by such Prospectus and any
amendment or supplement thereto;
(h) Prior to any public offering of Notes, Exchange Notes or
Private Exchange Notes, use their best efforts to register or qualify
or cooperate with the holders of Notes, Exchange Notes or Private
Exchange Notes to be sold or tendered for, the underwriters, if any,
and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification)
of such Notes, Exchange Notes or Private Exchange Notes for offer and
sale under the securities or Blue Sky laws of such jurisdictions
within the United States as any such holder or underwriter reasonably
requests in writing; keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration
Statement is required to be kept effective hereunder and do any and
all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Notes, Exchange Notes or
Private Exchange Notes covered by the applicable Registration
Statement; provided, however, that the Issuers shall not be required
to (i) qualify generally to do business in any jurisdiction where
they are not then so qualified or (ii) take any action which would
subject them to general service of process or to taxation in any
jurisdiction where they are not so subject;
(i) In connection with any sale or transfer of Transfer
Restricted Securities that will result in such securities no longer
being Transfer Restricted Securities, cooperate with the holders
thereof and the managing underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold, which certificates shall not bear
any restrictive legends and shall be in a form eligible for deposit
with The Depository Trust Company and to enable such Transfer
Restricted Securities to be in such denominations and registered in
such names as the managing underwriters, if any, or such holders may
request at least two Business Days prior to any sale of Transfer
Restricted Securities;
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(j) Upon the occurrence of any event contemplated by Section
5(c)(v), as promptly as practicable, prepare a supplement or
amendment, including, if appropriate, a post-effective amendment, to
each Registration Statement or a supplement to the related Prospectus
or any document incorporated or deemed to be incorporated therein by
reference, and file any other required document so that, as
thereafter delivered, such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading;
(k) Prior to the effective date of the Exchange Registration
Statement, to provide a CUSIP number for the Exchange Notes (and
Private Exchange Notes if applicable);
(l) If a Shelf Registration Statement is filed pursuant to
Section 3 hereof, enter into such agreements (including an
underwriting agreement in form, scope and substance as is customary
in underwritten offerings) and take all such other reasonable actions
in connection therewith (including those reasonably requested by the
managing underwriters, if any, or the holders of a majority in aggregate
principal amount of the Transfer Restricted Securities being sold) in
order to expedite or facilitate the disposition of such Transfer
Restricted Securities, and, whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration, (i) make such representations and warranties to the holders
of such Transfer Restricted Securities and the underwriters, if any, with
respect to the business of the Company and its subsidiaries (including
with respect to businesses or assets acquired or to be acquired by any of
them), and the Shelf Registration Statement, Prospectus and documents, if
any, incorporated or deemed to be incorporated by reference therein, in
each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings, and confirm the same
if and when requested; (ii) obtain opinions of counsel to the Issuers and
updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing underwriters,
if any, and Special Counsel to the holders of the Transfer Restricted
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Securities being sold), addressed to each selling holder of Transfer
Restricted Securities and each of the underwriters, if any, covering the
matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such
Special Counsel and underwriters; (iii) use their best efforts to obtain
customary "cold comfort" letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements
and financial data is, or is required to be, included in the Shelf
Registration Statement), addressed (where reasonably possible) to each
selling holder of Transfer Restricted Securities and each of the
underwriters, if any, such letters to be in custom ary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings; (iv) if an underwriting agreement
is entered into, the same shall contain indemnification provisions and
procedures no less favorable to the selling holders and the underwriters,
if any, than those set forth in Section 7 hereof (or such other
provisions and procedures acceptable to holders of a majority in
aggregate principal amount of Transfer Restricted Securities covered by
such Shelf Registration Statement and the managing underwriters, if
any); and (v) deliver such documents and certificates as may be
reasonably requested by the holders of a majority in aggregate principal
amount of the Transfer Restricted Securities being sold, their Special
Counsel and the managing underwriters, if any, to evidence the continued
validity of the representations and warranties made pursuant to clause
(i) above and to evidence compliance with any customary conditions
contained in the underwriting agreement or other agreement entered into
by the Issuers;
(m) In the case of a Shelf Registration, make available for
inspection by a representative of the holders of Transfer Restricted
Securities being sold, any underwriter participating in any such
disposition of Transfer Restricted Securities, and any attorney,
consultant or accountant retained by such selling holders or
underwriter, at the offices where normally kept, during reasonable
business hours, all financial and other records, pertinent corporate
documents and prop-
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erties of the Company and its subsidiaries (including with respect to
businesses and assets acquired or to be acquired to the extent that such
information is available to the Company), and cause the officers,
directors, agents and employees of the Company and its subsidiaries
(including with respect to businesses and assets acquired or to be
acquired to the extent that such information is available to the Company)
to supply all information in each case reasonably requested by any such
representative, underwriter, attorney, consultant or accountant in
connection with such Shelf Registration; provided, however, that such
persons shall first agree in writing with the Company that any
information that is reasonably and in good faith designated by the
Company in writing as confidential at the time of delivery of such
information shall be kept confidential by such persons, unless (i)
disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory authorities,
(ii) disclosure of such information is required by law (including any
disclosure requirements pursuant to Federal securities laws in connection
with the filing of the Shelf Registration Statement or the use of any
Prospectus), (iii) such information becomes generally available to the
public other than as a result of a disclosure or failure to safeguard
such information by such person or (iv) such information becomes
available to such person from a source other than the Company and its
subsidiaries and such source is not bound by a confidentiality agreement;
and provided, further, that the foregoing inspection and information
gathering shall be coordinated by one counsel designated by and on behalf
of such other persons;
(n) Provide an indenture trustee for the Notes and/or the
Exchange Notes and Private Exchange Notes, as the case may be, and
cause an indenture to be qualified under the TIA not later than the
effective date of the first Registration Statement relating to the
Notes and/or the Exchange Notes and Private Exchange Notes, as the
case may be; and if such indenture shall be the Indenture, in
connection therewith, cooperate with the Trustee and the holders of
the Notes and/or the Exchange Notes and Private Exchange Notes, to
effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the TIA;
and execute, and use its reasonable efforts to cause the Trustee to
execute, all customary docu-
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ments as may be required to effect such changes, and all other forms
and documents required to be filed with the SEC to enable the Indenture
to be so qualified in a timely manner;
(o) Comply with all applicable rules and regulations of the SEC
and make generally available to their securityholders earning
statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158, 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 Transfer Restricted Securities are sold to
underwriters in a firm commitment or reasonable efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter after the
effective date of a Registration Statement, which statement shall
cover said period, consistent with the requirements of Rule 158; and
(p) Cooperate with each seller of Transfer Restricted Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Transfer Restricted
Securities and their respective counsel in connection with any
filings required to be made with the National Association of
Securities Dealers, Inc.
(q) Use their best efforts to cause the Exchange Notes, if
issued, to be listed on the New York Stock Exchange on or prior to
the consummation of the Exchange Offer.
The Issuers may require a holder of Transfer Restricted Securities
to be included in a Registration Statement to furnish to the Issuers such
information regarding the distribution of such Transfer Restricted Securities
as is required by law to be disclosed in such Registration Statement and the
Issuers may exclude from such Registration Statement the Transfer Restricted
Securities of any holder who unreasonably fails to furnish such information
within a reasonable time after receiving such request.
If any such Registration Statement refers to any holder by name or
otherwise as the holder of any securities of an Issuer, then such holder shall
have the right to require (i)
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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 Issuers' 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, 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.
In the case of a Shelf Registration pursuant to Section 3 hereof, each
holder of Transfer Restricted Securities agrees by acquisition of such Transfer
Restricted Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 5(c)(ii), 5(c)(iii),
5(c)(iv) or 5(c)(v) hereof, such holder will forthwith discontinue disposition
of such Transfer Restricted Securities covered by such Registration Statement
or Prospectus until such holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(j) hereof, or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus. If the Company shall give any
such notice, the Effectiveness Period shall be extended by the number of days
during such period from and including the date of the giving of such notice to
and including the date when each holder of Transfer Restricted Securities
covered by such Registration Statement shall have received (x) the copies of
the supplemented or amended Prospectus contemplated by Section 5(j) hereof or
(y) the Advice, and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus.
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 any
Registration Statement is filed or becomes effective and whether or not any
Notes, Exchange Notes or Private Exchange Notes are issued or sold pursuant to
any Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without
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limitation, (i) all registration and filing fees (including, without
limitation, fees and expenses (A) with respect to filings required to be made
with the National Association of Securities Dealers, Inc. and (B) in compliance
with securities or Blue Sky laws), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Notes, Exchange Notes and
Private Exchange Notes in a form eligible for deposit with The Depository Trust
Company and of printing Prospectuses), (iii) reasonable fees and disbursements
of counsel for the Issuers and the Special Counsel, (iv) fees and disbursements
of all independent certified public accountants referred to in Section 2(e) and
Section 5(l)(iii) hereof (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), (v) if required, the reasonable fees and expenses of any
"qualified independent underwriter" and its counsel, and (vi) fees and expenses
of all other persons retained by the Issuers. In addition, the Issuers shall
pay their internal expenses (including, without limitation, all salaries and
expenses of their respective officers and employees performing legal or
accounting duties), the expense of any annual audit, and the fees and expenses
incurred in connection with the listing of the Notes, Exchange Notes or Private
Exchange Notes to be registered on any securities exchange. Notwithstanding
the foregoing or anything in this Agreement to the contrary, each holder of
Transfer Restricted Securities shall pay all underwriting discounts and
commissions of any underwriters with respect to any Notes, Exchange Notes or
Private Exchange Notes sold by it.
7. Indemnification
(a) The Issuers agree, jointly and severally, to indemnify and hold
harmless (i) the Initial Purchaser, each holder of Notes, Exchange Notes
and Private Exchange Notes and each Participating Broker-Dealer, (ii) each
person, if any, who controls (within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act) any of the foregoing (any of the persons
referred to in this clause (ii) being hereinafter referred to as a
"controlling person"), and (iii) the respective officers, directors,
partners, employees, representatives and agents of the Initial Purchasers,
each holder of Notes, Exchange Notes and Private Exchange Notes, each
Participating Broker-Dealer and any controlling person (any person referred
to in clause (i), (ii) or (iii) may hereinafter be referred to as an
"Indemnified Person"), from and against any and all losses, claims,
damages, liabilities and judgments arising out of or relating to any
24
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untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement, Prospectus or preliminary prospectus or in
any amendment or supplement thereto, or arising out of or relating to 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 any Prospectus or preliminary prospectus or supplement thereto, in light
of the circumstances under which they were made) not misleading, except
insofar as such losses, claims, damages, liabilities or judgments are
caused by any such untrue statement or omission or alleged untrue statement
or omission based upon information relating to any Indemnified Person
furnished in writing to the Issuers by or on behalf of such Indemnified
Person expressly for use therein; provided that the foregoing indemnity
with respect to any preliminary prospectus shall not inure to the benefit
of any Indemnified Person from whom the person asserting such losses,
claims, damages, liabilities and judgments purchased securities if such untrue
statement or omission or alleged untrue statement or omission made in such
preliminary prospectus is eliminated or remedied in the Prospectus and a copy
of the Prospectus shall not have been furnished to such person in a timely
manner due to the wrongful action or wrongful inaction of such Indemnified
Person.
(b) In case any action shall be brought against any Indemnified
Person, based upon any Registration Statement or any such Prospectus or
preliminary prospectus or any amendment or supplement thereto and with
respect to which indemnity may be sought against the Issuers hereunder,
such Indemnified Person shall promptly notify the Issuers in writing and
the Company shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to such Indemnified Person and payment of
all fees and expenses. Any Indemnified Person shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person, unless (i) the employment of such counsel shall
have been specifically authorized in writing by the Issuers, (ii) the
Company shall have failed to assume the defense and employ counsel or pay
all such fees and expenses or (iii) the named parties to any such action
(including any impleaded parties) include both such Indemnified Person and
an Issuer and such Indemnified Person shall have been advised by counsel
that there may be one or more legal defenses available to it which are
different from or additional to those available to
25
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any such Issuer (in which case the Company shall not have the right to assume
the defense of such action on behalf of such Indemnified Person, it being
understood, however, that the Issuers shall not, in connection with any one
such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate firm
of attorneys (in addition to any local counsel) for all such Indemnified
Persons, which firm shall be designated in writing by such Indemnified Persons,
and that all such reasonable fees and expenses shall be reimbursed as they are
incurred). The Issuers shall not be liable for any settlement of any such
action effected without their written consent but if settled with the written
consent of the Issuers, the Issuers agree, jointly and severally, to indemnify
and hold harmless each Indemnified Person from and against any loss or
liability by reason of such settlement. No Issuer shall, without the prior
written consent of each Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is
a party and indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject matter of
such proceeding.
(c) In connection with any Registration Statement pursuant to which a
holder of Transfer Restricted Securities offers or sells Transfer
Restricted Securities, such holder agrees, severally and not jointly, to
indemnify and hold harmless the Issuers, their respective directors and
officers and any person controlling an Issuer within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Issuers to each Indemnified
Person but only with respect to information relating to such holder
furnished in writing by or on behalf of such holder expressly for use in
such Registration Statement. In any such case in which any action shall be
brought against an Issuer, any director or officer of an Issuer or any
person controlling an Issuer based on such Registration Statement and in
respect of which indemnity may be sought against a holder of Transfer
Restricted Securities, such holder shall have the rights and duties given
to the Issuers (except that if an Issuer shall have assumed the defense
thereof, such holder shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof but the
fees and expenses of such counsel shall be at the expense of such
26
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holder), and the Issuers, their respective directors and officers and any person
controlling an Issuer shall have the rights and duties given to the Indemnified
Persons by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to herein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities and judgments (i) in
such proportion as is appropriate to reflect the relative benefits received
by each indemnifying party on the one hand and the indemnified party on the
other hand from the offering of the Notes, the Exchange Notes or the
Private Exchange Notes, as the case may be (it being expressly understood
and agreed that the relative benefits received by the Issuers from the
offering of the Notes, Exchange Notes or Private Exchange Notes, as the
case may be, shall be the amount of the net proceeds received by the
Company from the sale of the Notes to the Initial Purchaser), or (ii) if
the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
each indemnifying party on the one hand and the indemnified party on the
other hand in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any
other relevant equitable considerations. The relative fault of the each
indemnifying party on the one hand the indemnified party on the other hand
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by an indemnifying party or
such indemnified party and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
The Issuers and the Initial Purchaser agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if the Indemnified Person were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, dam-
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ages, liabilities or judgments referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Indemnified Person shall
be required to contribute any amount in excess of the amount by which the net
profits received by it in connection with the sale of the Notes, Exchange Notes
or Private Exchange Notes contemplated by this Agreement exceeds the amount of
any damages which such Indemnified Person has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Indemnified Person's obligations to contribute pursuant to this Section 7(d)
are several in proportion to the respective amount of Notes, Exchange Notes or
Private Exchange Notes included in any such Registration Statement by each
Indemnified Person and not joint.
8. Rules 144 and 144A
Each of Issuers shall use its best efforts to file the reports required to
be filed by it under the Securities Act and the Exchange Act in a timely manner
and, if at any time it is not required to file such reports but in the past had
been required to or did file such reports, it will, upon the request of any
holder of Transfer Restricted Securities, make available other information as
required by, and so long as necessary to permit, sales of its Transfer
Restricted Securities pursuant to Rule 144A. Notwithstanding the foregoing,
nothing in this Section 8 shall be deemed to require an Issuer to register any
of its securities pursuant to the Exchange Act.
9. 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
will be selected by the holders of a majority in aggregate principal amount of
such Transfer Restricted Securities included in such offering, subject to the
consent of the Company (which will not be unreasonably withheld or delayed).
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No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such 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 required under the terms of such underwriting
arrangements.
10. Miscellaneous
(a) Remedies. In the event of a breach by an Issuer or by a holder of
Notes, Exchange Notes or Private Exchange Notes of any of its obligations
under this Agreement, each holder of Notes, Exchange Notes or Private
Exchange Notes and each Issuer, in addition to being entitled to exercise
all rights granted by law, including recovery of damages, will be entitled
to specific performance of its rights under this Agreement. Subject to
Section 4 hereof, the Issuers and each holder of Notes, Exchange Notes and
Private Exchange Notes agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach of any of the
provisions of this Agreement and each hereby further agrees that, in the
event of any action for specific performance in respect of such breach, it
shall waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Issuers will not enter into any
agreement with respect to their securities that is inconsistent with the
rights granted to the holders of Notes, Exchange Notes and Private Exchange
Notes and Indemnified Persons in this Agreement or otherwise conflicts with
the provisions hereof. Without the written consent of the holders of a
majority in aggregate principal amount of the outstanding Transfer
Restricted Securities, the Issuers shall not grant to any person any rights
which conflict with or are inconsistent with the provisions of this
Agreement.
(c) No Piggyback on Registrations. The Issuers shall not grant to any
of their securityholders (other than the holders of Transfer Restricted
Securities in such capacity) the right to include any of their securities
in any Registration Statement other than Transfer Restricted Securities.
(d) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence,
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may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise than with the
prior written consent of the holders of not less than a majority of the then
outstanding aggregate principal amount of Transfer Restricted Securities;
provided, however, that, for the purposes of this Agreement, Transfer
Restricted Securities that are owned, directly or indirectly, by the Issuers or
any of their Affiliates are not deemed outstanding. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of holders of
Transfer Restricted Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other holders of Transfer Restricted Securities may be given by
holders of a majority in aggregate principal amount of the Transfer Restricted
Securities being sold by such holders pursuant to such Registration Statement;
provided, however, that the provisions of this sentence may not be amended,
modified or supplemented except in accordance with the provisions of the
immediately preceding sentence. Notwithstanding the foregoing, no amendment,
modification, supplement, waiver or consent with respect to Section 7 shall be
made or given otherwise than with the prior written consent of each Indemnified
Person affected thereby.
(e) Notices. All notices and other communications provided for herein
shall be made in writing by hand-delivery, next-day air courier, certified
first-class mail, return receipt requested, telex or telecopier:
(i) if to the Issuers, as provided in the Purchase
Agreement,
(ii) if to the Initial Purchaser, as provided in the
Purchase Agreement, or
(iii) if to any other person who is then the registered
holder of Notes, Exchange Notes or Private Exchange Notes, to the
address of such holder as it appears in the register therefor of
the Company.
Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given: when delivered by hand,
if personally delivered; one business day after being timely delivered to a
next-day air courier; five business days after being deposited in the mail,
postage
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prepaid, if mailed; when answered back, if telexed; and when receipt is
acknowledged by the recipient's telecopier machine, if telecopied.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of each of the
parties and shall inure to the benefit of each holder of Notes, Exchange
Notes and Private Exchange Notes. The Issuers may not assign any of their
rights or obligations hereunder without the prior written consent of each
holder of Transfer Restricted Securities and each Indemnified Person.
Notwithstanding the foregoing, no successor or assignee of an Issuer shall
have any of the rights granted under this Agreement until such person shall
acknowledge its rights and obligations hereunder by a signed written statement
of such person's acceptance of such rights and obligations.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and, all of which
taken together shall constitute one and the same Agreement.
(h) Governing Law; Submission to Jurisdiction. 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 WITHIN THE STATE OF
NEW YORK. 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.
(i) Severability. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. 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 reasonable efforts
to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term,
31
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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) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
All references made in this Agreement to "Section" and "paragraph" refer to
such Section or paragraph of this Agreement, unless expressly stated
otherwise.
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
WALBRO CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
WALBRO AUTOMOTIVE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
WALBRO ENGINE MANAGEMENT
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
XXXXXX MANUFACTURING COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
XXXXXXXXX ENGINEERED PRODUCTS,
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
33
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SALOMON BROTHERS INC
By: /s/ Xxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
