EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated June 21, 2002 (the
"Agreement") is entered into by and among Xxxxxx Industries Inc., an Ohio
corporation (the "Company"), Xxxxxx Industries Ltd., a company existing under
the laws of Bermuda (the "Guarantor"), and X.X. Xxxxxx Securities Inc. and Banc
of America Securities LLC (together, the "Representatives") and the other
Initial Purchasers named on Schedule 1 to the Purchase Agreement (together with
the Representatives, the "Initial Purchasers").
The Company, the Guarantor and the Initial Purchasers are parties to
the Purchase Agreement dated June 17, 2002 (the "Purchase Agreement"), which
provides for the sale by the Company to the Initial Purchasers of $300,000,000
aggregate principal amount of the Company's 5.25% Senior Notes due 2007 (the
"Securities") which will be guaranteed on an unsecured senior basis by the
Guarantor. As an inducement to the Initial Purchasers to enter into the Purchase
Agreement, the Company and the Guarantor have agreed to provide to the Initial
Purchasers and their direct and indirect transferees the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the following meanings:
"Business Day" shall mean any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed.
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Dates" shall have the meaning set forth in Section 2(a)(ii)
hereof.
"Exchange Offer" shall mean the exchange offer by the Company and the
Guarantor of Exchange Securities for Transfer Restricted Securities pursuant to
Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
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"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference therein.
"Exchange Securities" shall mean senior notes issued by the Company and
guaranteed by the Guarantor under the Indenture containing terms identical to
the Securities (except that the Exchange Securities will not be subject to
restrictions on transfer or to any increase in annual interest rate for failure
to comply with this Agreement) and to be offered to Holders of Securities in
exchange for Securities pursuant to the Exchange Offer.
"Guarantor" shall have the meaning set forth in the preamble and shall
also include the Guarantor's successors.
"Holders" shall mean the Initial Purchasers, for so long as they own
any Transfer Restricted Securities, and each of their successors, assigns and
direct and indirect transferees who become owners of Transfer Restricted
Securities under the Indenture; provided that for purposes of Sections 4 and 5
of this Agreement, the term "Holders" shall include Participating
Broker-Dealers.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Indenture" shall mean the Indenture relating to the Securities dated
as of January 15, 1990 among the Company and The Chase Manhattan Bank (National
Association), as trustee, as supplemented by the First Supplemental Indenture,
dated as of May 15, 2002, and the Second Supplemental Indenture dated as of June
21, 2002, each between the Company, the Guarantor and JPMorgan Chase Bank, as
trustee.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Transfer Restricted Securities;
provided that whenever the consent or approval of Holders of a specified
percentage of Transfer Restricted Securities is required hereunder, Transfer
Restricted Securities owned directly or indirectly by the Company or any of its
affiliates shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage or amount.
"Participating Broker-Dealers" shall have the meaning set forth in
Section 4(a) hereof.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with
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respect to the terms of the offering of any portion of the Transfer Restricted
Securities covered by a Shelf Registration Statement, and by all other
amendments and supplements to such prospectus, and in each case including any
document incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Transfer Restricted Securities" shall mean the Securities; provided
that the Securities shall cease to be Transfer Restricted Securities (i) when a
Registration Statement with respect to such Securities has been declared
effective under the Securities Act and such Securities have been exchanged or
disposed of pursuant to such Registration Statement, (ii) when such Securities
are distributed to the public pursuant to Rule 144 under the Securities Act or
are eligible to be sold pursuant to Rule 144(k) (or any similar provision then
in force, but not Rule 144A) under the Securities Act or (iii) when such
Securities cease to be outstanding.
"Registration Default" shall have the meaning set forth in Section
2(d).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company and the Guarantor with this
Agreement, including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees, (ii) all
fees and expenses incurred in connection with compliance with state securities
or blue sky laws (including reasonable fees and disbursements of counsel for any
Underwriters or Holders in connection with blue sky qualification of any
Exchange Securities or Transfer Restricted Securities), (iii) all expenses of
any Persons in preparing or assisting in preparing, word processing, printing
and distributing any Registration Statement, any Prospectus and any amendments
or supplements thereto, any underwriting agreements, securities sales agreements
or other similar agreements and any other documents relating to the performance
of and compliance with this Agreement, (iv) all rating agency fees, (v) all fees
and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee and
its counsel, (vii) the reasonable fees and disbursements of counsel for the
Company and the Guarantor and, in the case of a Shelf Registration Statement,
the reasonable fees and disbursements of one counsel for the Holders (which
counsel shall be selected by the Majority Holders and which counsel may also be
counsel for the Initial Purchasers) and (viii) the fees and disbursements of the
independent public accountants of the Company and the Guarantor, including the
expenses of any special audits or "comfort" letters required by or incident to
the performance of and compliance with this Agreement, but excluding fees and
expenses of counsel to the Underwriters (other than fees and expenses set forth
in clause (ii) above) or the Holders and underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of Transfer
Restricted Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company and the Guarantor that covers any of the Exchange Securities or Transfer
Restricted Securities pursuant to the provisions of this Agreement and all
amendments and supplements to any such registration statement, including
post-effective amendments, in
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each case including the Prospectus contained therein, all exhibits thereto and
any document incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Effectiveness Period" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Filing Date" shall have the meaning set forth in Section 2(b).
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company and the Guarantor that covers all the Transfer
Restricted Securities (but no other securities unless approved by the Holders
whose Transfer Restricted Securities are to be covered by such Shelf
Registration Statement) on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and any document incorporated by reference
therein.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended from time to time.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
"Underwritten Offering" shall mean an offering in which Transfer
Restricted Securities are sold to an Underwriter for reoffering to the public.
2. Registration Under the Securities Act. (a) To the extent not
prohibited by any applicable law or applicable interpretations of the Staff of
the SEC, the Company and the Guarantor shall (i) cause to be filed an Exchange
Offer Registration Statement covering an offer to the Holders to exchange all
the Transfer Restricted Securities for Exchange Securities not later than 90
days after the Closing Date, (ii) use their reasonable best efforts to cause the
Exchange Offer Registration Statement to be declared effective by the SEC not
later than 180 days after the Closing Date and (iii) use their reasonable best
efforts to consummate the Exchange Offer not later than 220 days after the
Closing Date. The Company and the Guarantor shall commence the Exchange Offer
promptly after the Exchange Offer Registration Statement is declared effective
by the SEC and use their reasonable best efforts to complete the Exchange Offer
not later than 60 days after such effective date.
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The Company and the Guarantor shall commence the Exchange Offer by
mailing the related Prospectus, appropriate letters of transmittal and other
accompanying documents to each Holder stating, 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 Transfer Restricted Securities validly tendered and not
properly withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at
least 20 Business Days from the date such notice is mailed) (the
"Exchange Dates");
(iii) that any Registrable Security not tendered, or tendered and
subsequently withdrawn, will remain outstanding and continue to accrue
interest but will not retain any rights under this Agreement or accrue
any additional interest under Section 2(d) hereof as a result of such
failure to tender any Transfer Restricted Security;
(iv) that any Holder electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Security, together with the appropriate letters of
transmittal, to the institution and at the address (located in the
Borough of Manhattan, The City of New York) and in the manner specified
in the notice, prior to the close of business on the last Exchange
Date; and
(v) that any Holder will be entitled to withdraw its election, not later
than the close of business on the last Exchange Date, by sending to the
institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice, a telegram, telex,
facsimile transmission or letter setting forth the name of such Holder,
the principal amount of Transfer Restricted Securities delivered for
exchange and a statement that such Holder is withdrawing its election
to have such Securities exchanged.
As a condition to participating in the Exchange Offer, a Holder will be
required to represent to the Company and the Guarantor that (i) any Exchange
Securities to be received by it will be acquired in the ordinary course of its
business, (ii) at the time of the commencement of the Exchange Offer it has no
arrangement or understanding with any Person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Securities in
violation of the provisions of the Securities Act, (iii) it is not an
"affiliate" (within the meaning of Rule 405 under Securities Act) of the Company
or the Guarantor and (iv) if such Holder is a broker-dealer that will receive
Exchange Securities for its own account in exchange for Transfer Restricted
Securities that were acquired as a result of market-making or other trading
activities, then such Holder will deliver a Prospectus in connection with any
resale of such Exchange Securities.
As soon as practicable after the last Exchange Date, the Company and
the Guarantor shall:
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(i) accept for exchange Transfer Restricted Securities or portions thereof
validly tendered and not properly withdrawn pursuant to the Exchange
Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all
Transfer Restricted Securities or portions thereof so accepted for
exchange by the Company and issue, and cause the Trustee to promptly
authenticate and deliver to each Holder, Exchange Securities equal in
principal amount to the principal amount of the Transfer Restricted
Securities surrendered by such Holder.
The Company and the Guarantor shall use their reasonable best efforts
to complete the Exchange Offer as provided above and shall comply with the
applicable requirements of the Securities Act, the Exchange Act and other
applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than those set
forth in Section 2(a) hereof and that the Exchange Offer does not violate any
applicable law or applicable interpretations of the Staff of the SEC.
(b) If (i) because of any change in law or applicable interpretations
thereof by the SEC's staff, the Company is not permitted to effect the Exchange
Offer as contemplated by Section 2(a) hereof, or (ii) for any other reason the
Exchange Offer is not consummated within 220 days after the Closing Date, or
(iii) within 30 days after consummation of the Exchange Offer, any Initial
Purchaser so requests with respect to Securities not eligible to be exchanged
for Exchange Securities in the Exchange Offer and held by it following the
consummation of the Exchange Offer, or (vi) any applicable law or
interpretations do not permit any Holder to participate in the Exchange Offer,
or any Holder that participates in the Exchange Offer does not receive freely
transferable Exchange Securities in exchange for tendered Securities, and in
either case, requests within 30 days after consummation of the Exchange Offer,
the Company and the Guarantor shall use their reasonable best efforts to file as
promptly as practicable (but in no event more than 45 days after so required or
requested pursuant to this Section 2 or 90 days after the Closing Date,
whichever is later) with the SEC (the "Shelf Filing Date"), and thereafter shall
use their reasonable best efforts to cause to be declared effective, a Shelf
Registration Statement on an appropriate form under the Securities Act relating
to the offer and sale of the Transfer Restricted Securities by the Holders
thereof from time to time in accordance with the methods of distribution set
forth in such Shelf Registration Statement.
In the event that the Company and the Guarantor are required to file a
Shelf Registration Statement pursuant to clause (iii) of the preceding sentence,
the Company and the Guarantor shall use their reasonable best efforts to file
and have declared effective by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Transfer Restricted
Securities and a Shelf Registration Statement (which may be a combined
Registration Statement with the Exchange Offer Registration Statement) with
respect to offers and sales of Transfer Restricted Securities held by the
Initial Purchasers after completion of the Exchange Offer.
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The Company and the Guarantor agree to use their reasonable best
efforts to keep the Shelf Registration Statement continuously effective until
the expiration of the period referred to in Rule 144(k) under the Securities Act
with respect to the Transfer Restricted Securities or such shorter period that
will terminate when all the Transfer Restricted Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement (the "Shelf Effectiveness Period"). The Company and the Guarantor
further agree to supplement or amend the Shelf Registration Statement and the
related Prospectus if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registration or if reasonably requested by a
Holder of Transfer Restricted Securities with respect to information relating to
such Holder, and to use their reasonable best efforts to cause any such
amendment to become effective and such Shelf Registration Statement and
Prospectus to become usable as soon as thereafter practicable. The Company and
the Guarantor agree to furnish to the Holders of Transfer Restricted Securities
copies of any such supplement or amendment promptly after its being used or
filed with the SEC.
(c) The Company and the Guarantor shall pay all Registration Expenses
in connection with the registration pursuant to Section 2(a) and Section 2(b)
hereof. Each Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Transfer Restricted Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC.
In the event that (i) the Exchange Offer Registration Statement is not
filed with the SEC on or prior to 90 days after the Closing Date or the Shelf
Registration Statement is not filed with the SEC on or before the Shelf Filing
Date, (ii) the Exchange Offer Registration Statement is not declared effective
within 180 days after the Closing Date, or the Shelf Registration Statement is
not declared effective within 90 days after the Shelf Filing Date, (iii) the
Exchange Offer is not consummated on or prior to 220 days after the Closing
Date, or (iv) the Shelf Registration Statement is filed and declared effective
by the date required but shall thereafter cease to be effective (at any time
that the Company and the Guarantor are obligated to maintain the effectiveness
thereof) or the Prospectus contained therein ceases to be usable and such
failure to remain effective or be usable exists for more than 30 days (whether
or not successive) within any 12-month period (each such event referred to in
clauses (i) through (iv), a "Registration Default"), the Company or the
Guarantor, as applicable, will be obligated to pay additional cash interest to
each Holder of Transfer Restricted Securities, during the period of one or more
such Registration Defaults, in an amount equal to 0.25% per annum of the
principal amount of Transfer Restricted Securities held by such Holder during
the first 90 day period following such registration default, increasing by an
additional 0.25% per annum during each subsequent 90 day period up to a maximum
of 0.50% per annum, until (i) the applicable Registration Statement is filed,
(ii) the Exchange Offer Registration Statement or the Shelf Registration
Statement, as the case may be, is declared effective, (iii) the
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Registered Exchange Offer is consummated, or (iv) the Shelf Registration
Statement again becomes effective, as the case may be. Following the cure of all
Registration Defaults, the accrual of additional interest will cease. The
Company shall notify the Trustee immediately upon the happening of each and
every Registration Default. The Company or the Guarantor, as applicable, shall
pay the additional interest due on the Transfer Restricted Securities by
depositing with the Trustee, in trust, for the benefit of the Holders thereof,
on the next interest payment date specified by the Indenture and the Securities,
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
and the Securities 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 date of the applicable Registration
Default.
(e) Without limiting the remedies available to the Initial Purchasers
and the Holders, the Company and the Guarantor acknowledge that any failure by
the Company or the Guarantor to comply with their obligations under Section 2(a)
and Section 2(b) 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
Guarantor's obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with their obligations
pursuant to Section 2(a) and Section 2(b) hereof, the Company and the Guarantor
shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected by
the Company and the Guarantor, (y) shall, in the case of a Shelf Registration,
be available for the sale of the Transfer Restricted Securities by the selling
Holders thereof and (z) shall comply as to form in all material respects with
the requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith; and use their reasonable best efforts
to cause such Registration Statement to become effective and remain effective
for the applicable period in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period in accordance with
Section 2 hereof and cause each Prospectus to be supplemented by any required
prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424
under the Securities Act; and keep each Prospectus current during the period
described in Section 4(3) of and Rule 174 under the Securities Act that is
applicable to transactions by brokers or dealers with respect to the Transfer
Restricted Securities or Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each Holder of
Transfer Restricted Securities, to counsel for the Initial Purchasers, to
counsel for such Holders and to each Underwriter of an Underwritten Offering of
Transfer Restricted Securities, if
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any, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto, as such person
shall reasonably request, in order to facilitate the sale or other disposition
of the Transfer Restricted Securities thereunder; and the Company and the
Guarantor consent to the use of such Prospectus and any amendment or supplement
thereto in accordance with applicable law by each of the selling Holders of
Transfer Restricted Securities and any such Underwriters in connection with the
offering and sale of the Transfer Restricted Securities covered by and in the
manner described in such Prospectus or any amendment or supplement thereto in
accordance with applicable law;
(d) use their reasonable best efforts to register or qualify, to the
extent required, the Transfer Restricted Securities under all applicable state
securities or blue sky laws of such United States jurisdictions as any Holder of
Transfer Restricted Securities covered by a Registration Statement shall
reasonably request in writing by the time the applicable Registration Statement
is declared effective by the SEC; cooperate with the Holders in connection with
any filings required to be made with the National Association of Securities
Dealers, Inc.; and do any and all other acts and things that may be reasonably
necessary or advisable to enable each Holder to complete the disposition in each
such jurisdiction of the Transfer Restricted Securities owned by such Holder;
provided that neither the Company nor the Guarantor shall be required to (i)
qualify as a foreign corporation or other entity or as a dealer in securities in
any such jurisdiction where it would not otherwise be required to so qualify,
(ii) file any general consent to service of process in any such jurisdiction or
(iii) subject itself to taxation in any such jurisdiction if it is not so
subject;
(e) in the case of a Shelf Registration, notify each Holder of Transfer
Restricted Securities, counsel for such Holders and counsel for the Initial
Purchasers promptly and, if requested by any such Holder or counsel, confirm
such advice in writing (i) when a Registration Statement has become effective
and when any post-effective amendment thereto has been filed and becomes
effective, (ii) of any request by the SEC or any state securities authority for
amendments and supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Transfer Restricted
Securities covered thereby, the representations and warranties of the Company or
the Guarantor contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to an offering of such
Transfer Restricted Securities cease to be true and correct in all material
respects or if the Company or the Guarantor receives any notification with
respect to the suspension of the qualification of the Transfer Restricted
Securities for sale in any jurisdiction or the initiation of any proceeding for
such purpose, (v) of the happening of any event during the period a Shelf
Registration Statement is effective that makes any statement made in such
Registration Statement or the related Prospectus untrue in any material respect
or that requires the making of any changes in such Registration Statement or
Prospectus in order to make the statements therein not misleading and (vi) of
any determination by the Company or the Guarantor that a post-effective
amendment to a Registration Statement would be appropriate;
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(f) use their reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide prompt notice to each Holder of the withdrawal of
any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Transfer Restricted Securities, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto (without
any documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Transfer Restricted Securities to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted Securities to be
sold and not bearing any restrictive legends and enable such Transfer Restricted
Securities to be issued in such denominations and registered in such names
(consistent with the provisions of the Indenture) as the selling Holders may
reasonably request at least one Business Day prior to the closing of any sale of
Transfer Restricted Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(e)(v) hereof, use their reasonable best efforts
to prepare and file with the SEC a supplement or post-effective amendment to a
Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to purchasers of the Transfer Restricted Securities, such Prospectus
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the Company and
the Guarantor shall notify the Holders of Transfer Restricted Securities to
suspend use of the Prospectus as promptly as practicable after the occurrence of
such an event, and such Holders hereby agree to suspend use of the Prospectus
until the Company and the Guarantor have amended or supplemented the Prospectus
to correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or of any document that is to be
incorporated by reference into a Registration Statement or a Prospectus after
initial filing of a Registration Statement, provide copies of such document to
the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, to the Holders of Transfer Restricted Securities and
their counsel) and make such of the representatives of the Company and the
Guarantor as shall be reasonably requested by the Initial Purchasers or their
counsel (and, in the case of a Shelf Registration Statement, the Holders of
Transfer Restricted Securities or their counsel) available for discussion of
such document; and the Company and the Guarantor shall not, at any time after
initial filing of a Registration Statement, file any Prospectus, any amendment
of or supplement to a Registration Statement or a Prospectus, or any document
that is to be incorporated by reference into a Registration Statement or a
Prospectus, of which the Initial Purchasers and their counsel (and, in the case
of a Shelf
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Registration Statement, the Holders of Transfer Restricted Securities and their
counsel) shall not have previously been advised and furnished a copy or to which
the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Holders or their counsel) shall reasonably object;
(k) obtain a CUSIP number for all Exchange Securities or Transfer
Restricted Securities, as the case may be, not later than the effective date of
a Registration Statement;
(l) to the extent required, cause the Indenture to be qualified under
the Trust Indenture Act in connection with the registration of the Exchange
Securities or Transfer Restricted Securities, as the case may be; cooperate with
the Trustee and the Holders 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 Trust Indenture Act; and execute, and use their reasonable best efforts to
cause the Trustee to execute, all documents as may be required to effect such
changes and all other forms and documents required to be filed with the SEC to
enable the Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for inspection
by a representative of the Holders of the Transfer Restricted Securities (an
"Inspector"), any Underwriter participating in any disposition pursuant to such
Shelf Registration Statement, and attorneys and accountants designated by the
Holders, at reasonable times and in a reasonable manner, all pertinent financial
and other records, documents and properties of the Company and the Guarantor,
and cause the respective officers, directors and employees of the Company and
the Guarantor to supply all information reasonably requested by any such
Inspector, Underwriter, attorney or accountant in connection with a 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 that if any such information is identified by
the Company or the Guarantor as being confidential or proprietary, each Person
receiving such information shall take such actions as are reasonably necessary
(including execution of a confidentiality agreement reasonably satisfactory to
the Company and the Guarantor) to protect the confidentiality of such
information to the extent such action is otherwise not inconsistent with, an
impairment of or in derogation of the rights and interests of any Inspector,
Holder or Underwriter;
(n) if reasonably requested by any Holder of Transfer Restricted
Securities covered by a Registration Statement, promptly incorporate in a
Prospectus supplement or post-effective amendment such information with respect
to such Holder as such Holder reasonably requests to be included therein and
make all required filings of such Prospectus supplement or such post-effective
amendment as soon as the Company has received notification of the matters to be
incorporated in such filing; and
(o) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith (including
those requested by the Holders of a majority in principal amount of the Transfer
Restricted Securities being sold) in order to expedite or facilitate the
disposition of such Transfer Restricted
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Securities including, but not limited to, an Underwritten Offering and in such
connection, (i) to the extent possible, make such representations and warranties
to the Holders and any Underwriters of such Transfer Restricted Securities with
respect to the business of the Company and its subsidiaries, the Registration
Statement, Prospectus and documents incorporated by reference or deemed
incorporated by reference, if any, 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
Company and the Guarantor (which counsel and opinions, in form, scope and
substance, shall be reasonably satisfactory to the Holders and such Underwriters
and their respective counsel) addressed to each selling Holder and Underwriter
of Transfer Restricted Securities, covering the matters customarily covered in
opinions requested in underwritten offerings, (iii) obtain "comfort" letters
from the independent certified public accountants of the Company and the
Guarantor (and, if necessary, any other certified public accountant of any
subsidiary of the Company or the Guarantor, or of any business acquired by the
Company or the Guarantor for which financial statements and financial data are
or are required to be included in the Registration Statement) addressed to each
selling Holder and Underwriter of Transfer Restricted Securities, such letters
to be in customary form and covering matters of the type customarily covered in
"comfort" letters in connection with underwritten offerings and (iv) deliver
such documents and certificates as may be reasonably requested by the Holders of
a majority in principal amount of the Transfer Restricted Securities being sold
or the Underwriters, and which are customarily delivered in underwritten
offerings, to evidence the continued validity of the representations and
warranties of the Company and the Guarantor made pursuant to clause (i) above
and to evidence compliance with any customary conditions contained in an
underwriting agreement.
In the case of a Shelf Registration Statement, the Company may require
each Holder of Transfer Restricted Securities to furnish to the Company such
information regarding such Holder and the proposed disposition by such Holder of
such Transfer Restricted Securities as the Company and the Guarantor may from
time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder of Transfer
Restricted Securities agrees that, upon receipt of any notice from the Company
and the Guarantor of the happening of any event of the kind described in Section
3(e)(iii) or 3(e)(v) hereof, such Holder will forthwith discontinue disposition
of Transfer Restricted Securities pursuant to a Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof and, if so directed by the Company and the
Guarantor, such Holder will deliver to the Company and the Guarantor all copies
in its possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Transfer Restricted Securities that
is current at the time of receipt of such notice.
If the Company and the Guarantor shall give any such notice to suspend
the disposition of Transfer Restricted Securities pursuant to a Registration
Statement, the Company and the Guarantor shall extend the period during which
the Registration Statement shall be maintained effective pursuant to this
Agreement by the number of
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days during the period from and including the date of the giving of such notice
to and including the date when the Holders shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions. The
Company and the Guarantor may give any such notice only twice during any 365-day
period and any such suspensions shall not exceed 30 days for each suspension and
there shall not be more than two suspensions in effect during any 365-day
period.
The Holders of Transfer Restricted Securities covered by a Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers (the
"Underwriters") that will administer the offering will be selected by the
Majority Holders of the Transfer Restricted Securities included in such
offering.
4. Participation of Broker-Dealers in Exchange Offer. (a) The Staff of
the SEC has taken the position that any broker-dealer that receives Exchange
Securities for its own account in the Exchange Offer in exchange for Securities
that were acquired by such broker-dealer as a result of market-making or other
trading activities (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 Securities.
The Company and the Guarantor understand that it is the Staff's
position that if the Prospectus contained in the Exchange Offer Registration
Statement includes a plan of distribution containing a statement to the above
effect and the means by which Participating Broker-Dealers may resell the
Exchange Securities, without naming the Participating Broker-Dealers or
specifying the amount of Exchange Securities owned by them, such Prospectus may
be delivered by Participating Broker-Dealers to satisfy their prospectus
delivery obligation under the Securities Act in connection with resales of
Exchange Securities for their own accounts, so long as the Prospectus otherwise
meets the requirements of the Securities Act.
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(a) In light of the above, and notwithstanding the other provisions of
this Agreement, the Company and the Guarantor agree to use their reasonable best
efforts to keep the Exchange Offer Registration Statement remain effective and
to amend or supplement the Prospectus contained therein, as would otherwise be
contemplated by Section 3(i), for a period of up to 180 days after the last
Exchange Date (as such period may be extended pursuant to the penultimate
paragraph of Section 3 of this Agreement), if requested by the Initial
Purchasers or by one or more Participating Broker-Dealers, in order to expedite
or facilitate the disposition of any Exchange Securities by Participating
Broker-Dealers consistent with the positions of the Staff recited in Section
4(a) above. The Company and the Guarantor further agree that Participating
Broker-Dealers shall be authorized to deliver such Prospectus during such period
in connection with the resales contemplated by this Section 4.
(b) The Initial Purchasers shall have no liability to the Company, the
Guarantor or any Holder with respect to any request that they may make pursuant
to Section 4(b) above.
5. Indemnification and Contribution. (a) The Company and the Guarantor,
jointly and severally, agree to indemnify and hold harmless each Initial
Purchaser and each Holder, their respective affiliates, directors and officers
and each Person, if any, who controls any Initial Purchaser or any Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, reasonable legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that arise
out of, or are based upon, any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or any Prospectus or any
omission or alleged omission to state therein 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, except
insofar as such losses, claims, damages or liabilities arise out of, or are
based upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information furnished
to the Company in writing through the Representatives or any selling Holder
expressly for use therein. In connection with any Underwritten Offering
permitted by Section 3, the Company and the Guarantor, jointly and severally,
will also indemnify the Underwriters, if any, selling brokers, dealers and
similar securities industry professionals participating in the distribution,
their respective affiliates and each Person who controls such Persons (within
the meaning of the Securities Act and the Exchange Act) to the same extent as
provided above with respect to the indemnification of the Holders, if requested
in connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Guarantor, the Initial Purchasers and the other
selling Holders, their respective affiliates, the directors of the Company and
the Guarantor, each officer of the Company and the Guarantor who signed the
Registration Statement and each Person, if any, who controls the Company, the
Guarantor, any Initial Purchaser and any other selling Holder within the meaning
of Section 15 of the Securities Act or
15
Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or
liabilities that arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information furnished to the Company in writing by such
Holder expressly for use in any Registration Statement and any Prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such Person (the "Indemnified Person") shall
promptly notify the Person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 5 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 Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 5. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 5
that the Indemnifying Person may designate in such proceeding and shall pay the
fees and expenses of such counsel related to such proceeding, as incurred. In
any such proceeding, any Indemnified Person shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm (x) for any Initial
Purchaser, its affiliates, directors and officers and any control Persons of
such Initial Purchaser shall be designated in writing by the Representatives,
(y) for any Holder, its affiliates, directors and officers and any control
Persons of such Holder shall be designated in writing by the Majority Holders
and (z) in all other cases shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person
16
shall have requested that an Indemnifying Person reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by this paragraph, the
Indemnifying Person shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more
than 30 days after receipt by the Indemnifying Person of such request and (ii)
the Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and
indemnification could have been sought hereunder by such Indemnified Person,
unless such settlement (A) includes an unconditional release of such Indemnified
Person, in form and substance reasonably satisfactory to such Indemnified
Person, from all liability on claims that are the subject matter of such
proceeding and (B) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above
is unavailable to an Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantor from the offering of the
Securities and the Exchange Securities, on the one hand, and by the Holders from
receiving Securities or Exchange Securities registered under the Securities Act,
on the other hand, or (ii) if the allocation provided by 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) but also the relative fault
of the Company and the Guarantor on the one hand and the Holders on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Guarantor on the one
hand and the Holders on the other 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 Guarantor or by the Holders and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company, the Guarantor and the Holders agree that it would not
be just and equitable if contribution pursuant to this Section 5 were determined
by pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in connection with any such action or claim.
Notwithstanding the provisions of this Section 5, in no event shall a Holder be
required to contribute any amount in excess of the amount by which the total
price at which the Securities or Exchange Securities sold by such Holder exceeds
the
17
amount of any damages that such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
(f) The remedies provided for in this Section 5 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this Section
5 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers or any Holder, their respective affiliates or any Person
controlling any Initial Purchaser or any Holder, or by or on behalf of the
Company or the Guarantor, their respective affiliates or the officers or
directors of or any Person controlling the Company or the Guarantor, (iii)
acceptance of any of the Exchange Securities and (iv) any sale of Transfer
Restricted Securities pursuant to a Shelf Registration Statement.
6. General.
(a) No Inconsistent Agreements. The Company and the Guarantor
represent, warrant and agree that (i) the rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of any other outstanding securities issued or
guaranteed by the Company or the Guarantor under any other agreement and (ii)
neither the Company nor the Guarantor has entered into, or on or after the date
of this Agreement will enter into, any agreement that is inconsistent with the
rights granted to the Holders of Transfer Restricted Securities in this
Agreement or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company and the Guarantor have obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding
Transfer Restricted Securities affected by such amendment, modification,
supplement, waiver or consent; provided that no amendment, modification,
supplement, waiver or consent to any departure from the provisions of Section 5
hereof shall be effective as against any Holder of Transfer Restricted
Securities unless consented to in writing by such Holder. Any amendments,
modifications, supplements, waivers or consents pursuant to this Section 6(b)
shall be by a writing executed by each of the parties hereto.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or any courier guaranteeing overnight delivery (i)
if to a Holder, at the most current address given by such Holder to the Company
by means of a notice given in accordance with the provisions of this Section
6(c), which address initially is, with
18
respect to the Initial Purchasers, the address set forth in the Purchase
Agreement; (ii) if to the Company and the Guarantor, initially at the Company's
address set forth in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 6(c); and (iii) to such other persons at their respective addresses as
provided in the Purchase Agreement and thereafter at such other address, notice
of which is given in accordance with the provisions of this Section 6(c). All
such notices and communications shall be deemed to have been duly given: at the
time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged,
if telecopied; and on the next Business Day if timely delivered to an air
courier guaranteeing overnight delivery. Copies of all such notices, demands or
other communications shall be concurrently delivered by the Person giving the
same to the Trustee, at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Transfer Restricted
Securities in violation of the terms of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Transfer Restricted Securities in
any manner, whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all the terms of this Agreement, and by
taking and holding such Transfer Restricted Securities such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof. The Initial Purchasers (in their capacity as
Initial Purchasers) shall have no liability or obligation to the Company or the
Guarantor with respect to any failure by a Holder to comply with, or any breach
by any Holder of, any of the obligations of such Holder under this Agreement.
(e) Purchases and Sales of Securities. The Company and the Guarantor
shall not, and shall use their reasonable best efforts to cause their affiliates
(as defined in Rule 405 under the Securities Act) not to, purchase and then
resell or otherwise transfer any Transfer Restricted Securities.
(f) Third Party Beneficiaries. Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Company and the
Guarantor, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights of
other Holders hereunder.
(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.
19
(h) Headings. The headings in this Agreement are for convenience of
reference only, are not a part of this Agreement and shall not limit or
otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(j) Miscellaneous. This Agreement contains the entire agreement between
the parties relating to the subject matter hereof and supersedes all oral
statements and prior writings with respect thereto. If any term, provision,
covenant or restriction contained in this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable or against public
policy, the remainder of the terms, provisions, covenants and restrictions
contained herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. The Company, the Guarantor and the Initial
Purchasers shall endeavor in good faith negotiations to replace the invalid,
void or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, void or unenforceable
provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXXX INDUSTRIES, INC.
By:
-----------------------------------
Name:
Title:
XXXXXX INDUSTRIES, LTD.
By:
-----------------------------------
Name:
Title:
Confirmed and accepted as of the date first above written:
X.X. XXXXXX SECURITIES INC.
BANK OF AMERICA SECURITIES LLC
For themselves and on behalf of the
several Initial Purchasers listed in
Schedule 1 to the Purchase Agreement.
By: X.X. Xxxxxx Securities Inc.
By:
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Vice President
