EXHIBIT 4.3
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REGISTRATION RIGHTS AGREEMENT
Dated as of November 6, 1997
by and among
XXXXXX, INC.,
XXXXXX PRODUCTS COMPANY
and
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
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This Registration Rights Agreement (this "Agreement") is made and
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entered into as of November 6, 1997, by and among Xxxxxx, Inc., a Delaware
corporation (the "Company"), Xxxxxx Products Company, a Delaware corporation
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("Xxxxxx Products"), and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and
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Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (each an "Initial Purchaser"
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and collectively, the "Initial Purchasers"), each of whom has agreed to purchase
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the Company's 10 3/8% Series A Senior Subordinated Notes due 2007 (the "Series A
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Notes") pursuant to the Purchase Agreement (as defined below). The Notes (as
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defined below) will be guaranteed as of the Closing Date by Xxxxxx Products.
This Agreement is made pursuant to the Purchase Agreement, dated
October 31, 1997 (the "Purchase Agreement"), by and among the Company, Xxxxxx
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Products and the Initial Purchasers. In order to induce the Initial Purchasers
to purchase the Series A Notes, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchasers set
forth in Section 3 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
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Affiliate: As defined in Rule 144 under the Act.
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Broker-Dealer: Any broker or dealer registered under the Exchange
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Act.
Broker-Dealer Transfer Restricted Securities: Series B Notes that are
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acquired by a Broker-Dealer in the Exchange Offer in exchange for Series A Notes
that such Broker-Dealer acquired for its own account as a result of market
making activities or other trading activities (other than Series A Notes
acquired directly from the Company or any of its affiliates).
Business Day: Any day except a Saturday, Sunday or other day in the
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City of New York, or in the city of the corporate trust office of the Trustee,
on which banks are authorized to close.
Certificated Securities: As defined in the Indenture.
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Closing Date: The date hereof.
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Commission: The Securities and Exchange Commission.
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Consummate: An Exchange Offer shall be deemed "Consummated" for
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purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series B Notes to be issued in the Exchange Offer, (b) the
maintaining of such Registration Statement effective and the keeping of the
Exchange Offer open for a period not less than the minimum period required
pursuant to Section 3(b) hereof and (c) the delivery by the Company to the
Registrar under the Indenture of Series B Notes in the same aggregate principal
amount as the aggregate principal amount of Series A Notes tendered by Holders
thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Series A Notes, each
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Interest Payment Date.
Exchange Act: The Securities Exchange Act of 1934, as amended.
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Exchange Offer: The registration by the Company under the Act of the
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Series B Notes pursuant to the Exchange Offer Registration Statement pursuant to
which the Company shall offer the Holders of all outstanding Transfer Restricted
Securities the opportunity to exchange all such outstanding Transfer Restricted
Securities for Series B Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities tendered in
such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement
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relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers
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propose to sell the Series A Notes (i) to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Act and (ii) to persons
permitted to purchase the Series A Notes in offshore transactions in reliance on
Regulation S under the Act.
Global Securities: As defined in the Indenture.
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Holders: As defined in Section 2 hereof.
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Indemnified Holder: As defined in Section 8(a) hereof.
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Indenture: The Indenture, dated as of the Closing Date, among the
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Company, Xxxxxx Products and Marine Midland Bank, as trustee (the "Trustee"),
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pursuant to which the Notes are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture and the Notes.
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Liquidated Damages: As defined in Section 5 hereof.
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NASD: National Association of Securities Dealers, Inc.
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Notes: The Series A Notes and the Series B Notes.
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Person: An individual, partnership, corporation, trust,
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unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in a Registration Statement at
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the time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
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Record Holder: With respect to any Damages Payment Date, each Person
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who is a Holder of Notes on the record date with respect to the Interest Payment
Date on which such Damages Payment Date shall occur.
Registrar: As defined in the Indenture.
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Registration Default: As defined in Section 5 hereof.
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Registration Statement: Any registration statement of the Company and
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Xxxxxx Products relating to (a) an offering of Series B Notes pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, in each case, (i) which
is filed pursuant to the provisions of this Agreement and (ii) including the
Prospectus included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
Restricted Broker-Dealer: Any Broker-Dealer which holds Broker-Dealer
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Transfer Restricted Securities.
Series B Notes: The Company's 10 3/8% Series B Senior Subordinated
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Notes due 2007 to be issued pursuant to the Indenture (i) in the Exchange Offer
or (ii) as contemplated in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
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Suspension Notice: As defined in Section 6(d) hereof.
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TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
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as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note, until the earliest to
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occur of (a) the date on which such Note is exchanged in the Exchange Offer and
entitled to be resold to the public by the Holder thereof without complying with
the prospectus delivery requirements of the Act, (b) the date on which such Note
has been disposed of in accordance with a Shelf
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Registration Statement, (c) the date on which such Note is disposed of by a
Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the
Exchange Offer Registration Statement (including delivery of the Prospectus
contained therein) or (d) the date on which such Note is distributed to the
public pursuant to Rule 144 under the Act or may be sold without restrictions
pursuant to Rule 144(k) under the Act.
Underwritten Registration or Underwritten Offering: A shelf
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registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "Holder") whenever such Person owns Transfer Restricted Securities.
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SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law or applicable interpretation of the staff of the Commission (after
the procedures set forth in Section 6(a)(i) below have been complied with), the
Company and Xxxxxx Products shall (i) cause the Exchange Offer Registration
Statement to be filed with the Commission as soon as practicable after the
Closing Date, but in no event later than 45 days after the Closing Date, (ii)
use their reasonable best efforts to cause such Exchange Offer Registration
Statement to become effective at the earliest possible time, but in no event
later than 180 days after the Closing Date, (iii) in connection with the
foregoing, (A) file all pre-effective amendments to such Exchange Offer
Registration Statement as may be necessary in order to cause it to become
effective, (B) file, if applicable, a post-effective amendment to such Exchange
Offer Registration Statement pursuant to Rule 430A under the Act and (C) cause
all necessary filings, if any, in connection with the registration and
qualification of the Series B Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer, and
(iv) upon the effectiveness of such Exchange Offer Registration Statement,
commence and Consummate the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting registration of the Series B Notes to be offered in
exchange for the Series A Notes that are Transfer Restricted Securities and to
permit sales of Broker-Dealer Transfer Restricted Securities by Restricted
Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company and Xxxxxx Products shall use their respective
reasonable best efforts to cause the Exchange Offer Registration Statement to be
declared effective and shall keep the Exchange Offer open for a period of not
less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 20 Business Days. The Company and Xxxxxx
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Products shall cause the Exchange Offer to comply in all material respects with
all applicable federal and state securities laws. No securities other than the
Notes shall be included in the Exchange Offer Registration Statement. The
Company and Xxxxxx Products shall use their respective reasonable best efforts
to cause the Exchange Offer to be Consummated on the earliest practicable date
after the Exchange Offer Registration Statement has become effective, but in no
event later than 30 Business Days thereafter.
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Restricted Broker-Dealer who holds Series A Notes that are
Transfer Restricted Securities and that were acquired for the account of such
Broker-Dealer as a result of market-making activities or other trading
activities, may exchange such Series A Notes (other than Transfer Restricted
Securities acquired directly from the Company or any Affiliate of the Company)
pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be
an "underwriter" within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with its initial
sale of each Series B Note received by such Broker-Dealer in the Exchange Offer,
which prospectus delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer Registration
Statement. Such "Plan of Distribution" section shall also contain all other
information with respect to such sales of Broker-Dealer Transfer Restricted
Securities by Restricted Broker-Dealers that the Commission may require in order
to permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Notes held by any such
Broker-Dealer, except to the extent required by the Commission as a result of a
change in policy, rules or regulations after the date of this Agreement.
The Company and Xxxxxx Products shall use their respective reasonable
best efforts to keep the Exchange Offer Registration Statement effective,
supplemented and amended as required by the provisions of Section 6(c) below to
the extent necessary to ensure that it is available for sales of Broker-Dealer
Transfer Restricted Securities by Restricted Broker-Dealers, and to ensure that
such Registration Statement conforms with the requirements of this Agreement,
the Act and the policies, rules and regulations of the Commission as announced
from time to time, for a period of 180 days from the date on which the Exchange
Offer is Consummated or such shorter periods as will terminate when all Transfer
Restricted Securities covered thereby have been sold pursuant thereto.
The Company and Xxxxxx Products shall promptly provide sufficient
copies of the latest version of such Prospectus to such Restricted Broker-
Dealers promptly upon request, and in no event later than one Business day after
such request, at any time during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company and Xxxxxx Products are
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not required to file an Exchange Offer Registration Statement with respect to
the Series B Notes or not permitted to consummate the Exchange Offer because the
Exchange Offer is not permit-
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xxx by applicable law or Commission policy (after the Company and Xxxxxx
Products have complied with the procedures set forth in Section 6(a)(i) below)
or (ii) if any Holder of Transfer Restricted Securities shall notify the Company
within 20 Business Days following the Consummation of the Exchange Offer that
(A) such Holder was prohibited by law or Commission policy from participating in
the Exchange Offer or (B) such Holder may not resell the Series B Notes acquired
by it in the Exchange Offer to the public without delivering a prospectus and
the Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder or (C) such Holder is a
Broker-Dealer and holds Series A Notes acquired directly from the Company or one
of its Affiliates, then the Company and Xxxxxx Products
(x) shall use their reasonable best efforts to cause to be filed on or
prior to 45 days after the date on which the Company determines that it is not
required to file the Exchange Offer Registration Statement or not permitted to
Consummate the Exchange Offer pursuant to clause (i) above or 45 days after the
date on which the Company receives the notice specified in clause (ii) above a
shelf registration statement pursuant to Rule 415 under the Act (which may be an
amendment to the Exchange Offer Registration Statement (in either event, the
"Shelf Registration Statement")), relating to all Transfer Restricted Securities
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the Holders of which shall have provided the information required pursuant to
Section 4(b) hereof, and
(y) shall use their respective reasonable best efforts to cause such
Shelf Registration Statement to become effective on or prior to 180 days after
the date on which the Company becomes obligated to file such Shelf Registration
Statement. If, after the Company has filed an Exchange Offer Registration
Statement which satisfies the requirements of Section 3(a) above, the Company is
required to file and make effective a Shelf Registration Statement solely
because the Exchange Offer shall not be permitted under applicable federal law,
then the filing of the Exchange Offer Registration Statement shall be deemed to
satisfy the requirements of clause (x) above. Such an event shall have no
effect on the requirements of clause (y) above.
The Company and Xxxxxx Products shall use their respective reasonable
best efforts to keep the Shelf Registration Statement discussed in this Section
4(a) effective, supplemented and amended as required by and subject to the
provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure
that it is available for sales of Transfer Restricted Securities by the Holders
thereof entitled to the benefit of this Section 4(a), and to ensure that it
conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of at least two years (as extended pursuant to Section 6(c)(i)) following
the date on which such Shelf Registration Statement first becomes effective
under the Act or such shorter period as will terminate when all Transfer
Restricted Securities covered thereby have been sold pursuant thereto.
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(b) Provision by Holders of Certain Information in Connection with the
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Shelf Registration Statement. No Holder of Transfer Restricted Securities may
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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 15 days after receipt of a request therefor, such
information specified in items 507 and 508 of Regulation S-K under the Act, as
applicable, and 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 Liquidated Damages pursuant to Section 5 hereof unless and until
such Holder shall have provided all such information. Each Holder as to which
any Shelf Registration Statement is being effected agrees to furnish promptly to
the Company all additional information required to be disclosed in order to make
the information previously furnished to the Company by such Holder not
materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the date specified for such filing in
this Agreement, (ii) any such Registration Statement has not been declared
effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement, (iii) the Exchange Offer has not been
Consummated within 30 Business Days after the Exchange Offer Registration
Statement is first declared effective by the Commission or (iv) any Registration
Statement required by this Agreement is filed and declared effective but shall
thereafter cease to be effective or fail to be usable in connection with resales
of Transfer Restricted Securities without being succeeded within 1 day by a
post-effective amendment to such Registration Statement that cures such failure
and that is itself declared effective; provided that such Registration Statement
shall not cease to be effective or useable in connection with resales of
Transfer Restricted Securities for more than 1 day in any calendar year (each
such event referred to in clauses (i) through (iv), a "Registration Default"),
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then the Company and Xxxxxx Products hereby jointly and severally agree to pay
liquidated damages (the "Liquidated Damages") to each Holder of Transfer
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Restricted Securities with respect to the first 90-day period immediately
following the occurrence of such Registration Default, in an amount equal to
$.05 per week per $1,000 principal amount of Transfer Restricted Securities held
by such Holder for each week or portion thereof that the Registration Default
continues. The amount of the Liquidated Damages shall increase by an additional
$.05 per week per $1,000 in principal amount of Transfer Restricted Securities
with respect to each subsequent 90-day period until all Registration Defaults
have been cured, up to a maximum amount of Liquidated Damages of $.50 per week
per $1,000 principal amount of Transfer Restricted Securities; provided that the
Company and Xxxxxx Products shall in no event be required to pay Liquidated
Damages for more than one Registration Default at any given time.
Notwithstanding anything to the contrary set forth herein, (1) upon filing of
the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of (i) above, (2) upon the effectiveness of
the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement),
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in the case of (ii) above, (3) upon Consummation of the Exchange Offer, in the
case of (iii) above, or (4) upon the filing of a post-effective amendment to the
Registration Statement or an additional Registration Statement that causes the
Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement) to again be declared effective or made usable in the
case of (iv) above, the Liquidated Damages payable with respect to the Transfer
Restricted Securities as a result of such clause (i), (ii), (iii) or (iv), as
applicable, shall cease.
All accrued Liquidated Damages shall be paid to Holders of Global
Securities by wire transfer of immediately available funds or by federal funds
check and to Holders of Certificated Securities by mailing checks to their
registered addresses on each Damages Payment Date. All obligations of the
Company and Xxxxxx Products set forth in the preceding paragraph that are
outstanding with respect to any Transfer Restricted Security at the time such
security ceases to be a Transfer Restricted Security shall survive until such
time as all such obligations with respect to such security shall have been
satisfied in full.
Notwithstanding the foregoing, no Holder of Transfer Restricted
Securities shall be entitled to receive any Liquidated Damages with respect to
such Transfer Restricted Securities if a Holder of such Transfer Restricted
Securities was, at any time while the Exchange Offer was pending, eligible to
exchange, and did not validly tender, such Transfer Restricted Securities for
Series B Notes in such Exchange Offer.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
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Exchange Offer, the Company and Xxxxxx Products shall comply with all applicable
provisions of Section 6(c) below, shall use their respective reasonable best
efforts to effect such exchange and to permit the sale of Broker-Dealer Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof, and shall comply with all of the following
provisions:
(i) If, following the date hereof there has been published a change
in Commission policy with respect to exchange offers such as the Exchange
Offer, that in the reasonable opinion of counsel to the Company raises a
substantial question as to whether the Exchange Offer is permitted by
applicable federal law, the Company and Xxxxxx Products hereby agree to
seek a no-action letter or other favorable decision from the Commission
allowing the Company and Xxxxxx Products to Consummate an Exchange Offer
for the Transfer Restricted Securities. The Company and Xxxxxx Products
hereby agree to pursue the issuance of such a decision to the Commission
staff level but shall not be required to take commercially unreasonable
action to effect a change of Commission policy. In connection with the
foregoing, the Company and Xxxxxx Products hereby agree to take all such
other reasonable actions as are requested by the Commission or otherwise
required in connection with the issuance of such decision, including
without limitation (A) participating in telephonic
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conferences with the Commission, (B) delivering to the Commission staff an
analysis prepared by counsel to the Company setting forth the legal bases,
if any, upon which such counsel has concluded that such an Exchange Offer
should be permitted and (C) diligently pursuing a resolution (which need
not be favorable) by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer,
each Holder of Transfer Restricted Securities (including, without
limitation, any Holder who is a Broker-Dealer) shall furnish, upon the
request of the Company, prior to the Consummation of the Exchange Offer, a
written representation to the Company and Xxxxxx Products (which may be
contained in the letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that (A) it is not an Affiliate of
the Company, (B) it is not engaged in, and does not intend to engage in,
and has no arrangement or understanding with any person to participate in,
a distribution, within the meaning of the Act, of the Series B Notes to be
issued in the Exchange Offer and (C) it is acquiring the Series B Notes in
its ordinary course of business. In addition, all such Holders of Transfer
Restricted Securities shall otherwise reasonably cooperate in the Company's
and Xxxxxx Products' preparations for the Exchange Offer. Each Holder
using the Exchange Offer to participate in a distribution of the Series B
Notes hereby acknowledges and agrees that, if the resales are of Series B
Notes obtained by such Holder in exchange for Series A Notes acquired
directly from the Company or an Affiliate thereof, it (1) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc.,
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(available June 5, 1991) and Exxon Capital Holdings Corporation (available
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May 13, 1988), as interpreted in the Commission's letter to Shearman &
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Sterling (available July 2, 1993) and similar no-action letters (including,
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if applicable, any no-action letter obtained pursuant to clause (i) above),
and (2) must comply with the registration and prospectus delivery
requirements of the Act in connection with a secondary resale transaction
and that such a secondary resale transaction must be covered by an
effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company and Xxxxxx Products shall provide a supplemental
letter to the Commission (A) stating that the Company and Xxxxxx Products
are registering the Exchange Offer in reliance on the position of the
Commission enunciated in Exxon Capital Holdings Corporation (available May
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13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) as
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interpreted in the Commission's letter to Xxxxxxx & Sterling (available
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July 2, 1993) and, if applicable, any no-action letter obtained pursuant to
clause (i) above, (B) including a representation that neither the Company
nor Xxxxxx Products has entered into any arrangement or understanding with
any Person to distribute the Series B Notes to be received in the Exchange
Offer and that, to the best of
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the Company's and Xxxxxx Products's information and belief, each Holder
participating in the Exchange Offer is acquiring the Series B Notes in its
ordinary course of business and has no arrangement or understanding with
any Person to participate in the distribution of the Series B Notes
received in the Exchange Offer and (C) any other undertaking or
representation required by the Commission as set forth in any no-action
letter obtained pursuant to clause (i) above, if applicable.
(b) Shelf Registration Statement. In connection with the Shelf
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Registration Statement, the Company and Xxxxxx Products shall comply with all
the provisions of Section 6(c) below and shall use their respective reasonable
best efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof (as indicated in the information furnished to
the Company pursuant to Section 4(b) hereof), and pursuant thereto the Company
and Xxxxxx Products will prepare and file with the Commission a Shelf
Registration Statement relating to the registration on any appropriate form
under the Act, which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or methods of
distribution thereof within the time periods and otherwise in accordance with
the provisions hereof.
(c) General Provisions. In connection with any Registration Statement
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and any related Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities, the Company and Xxxxxx Products shall:
(i) use their respective reasonable best efforts to keep such
Registration Statement effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this Agreement, as
applicable. Upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not to be effective and usable for
resale of Transfer Restricted Securities during the period required by this
Agreement, the Company and Xxxxxx Products shall file promptly (subject to
Section 6(c)(xv) hereof) an appropriate amendment to such Registration
Statement, curing such defect, and if Commission review is required, use
their respective best efforts to cause such amendment to be declared
effective as soon as practicable;
(ii) prepare and file with the Commission such amendments and post-
effective amendments to the applicable Registration Statement as may be
necessary to keep such Registration Statement effective for the applicable
period set forth in Section 3 or 4 hereof, as the case may be, cause the
Prospectus to be supplemented by any required Prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the Act, and to
comply fully with Rules 424, 430A and 462, as applicable, under the Act in
a timely manner; and comply with the provisions of the Act with respect to
the disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or
methods of
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distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise the selling Holders and the underwriter(s), if any,
promptly and, if requested by such Persons, confirm such advice in writing,
(A) when the Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to any applicable Registration
Statement or any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or
for additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for any of the preceding purposes, (D) of the existence of
any fact or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes
in the Registration Statement in order to make the statements therein not
misleading, or that requires the making of any additions to or changes in
the Prospectus in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If at any time
the Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Company and Xxxxxx Products shall
use their respective reasonable best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) furnish to the Initial Purchaser(s), each selling Holder named
in any Registration Statement or Prospectus and each of the underwriter(s)
in connection with such exchange or sale, if any, before filing with the
Commission, copies of any Registration Statement or any Prospectus included
therein or any amendments or supplements to any such Registration Statement
or Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review and comment of such selling Holders and
underwriter(s) in connection with such sale, if any, for a period of at
least five Business Days, and the Company will not file any such
Registration Statement or Prospectus or any amendment or supplement to any
such Registration Statement or Prospectus (including all such documents
incorporated by reference) to which the selling Holders or the
underwriter(s) in connection with such sale, if any, shall reasonably
object within five Business Days after the receipt thereof;
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(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the selling Holders and to the
underwriter(s) in connection with such exchange or sale, if any, make the
Company's and Xxxxxx Products's representatives available for discussion of
such document and other customary due diligence matters, and include such
information in such document prior to the filing thereof, in each case as
such selling Holders or underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times for inspection by the
selling Holders, any managing underwriter participating in any disposition
pursuant to such Registration Statement and any attorney or accountant
retained by such selling Holders or any of such underwriter(s), all
financial and other records, pertinent corporate documents of the Company
and Xxxxxx Products and cause the Company's and Xxxxxx Products's officers,
directors and employees to supply all information reasonably requested by
any such selling Holder, underwriter, attorney or accountant in connection
with such Registration Statement or any post-effective amendment thereto
subsequent to the filing thereof and prior to its effectiveness; provided
that such Persons shall first agree in writing with the Company and Xxxxxx
Products that any information that is reasonably and in good faith
designated by the Company or Xxxxxx Products in writing as confidential at
the time of delivery of such information shall be kept confidential, such
Persons, unless (a) disclosure of such information is required by court or
administrative order or is necessary to respond to inquires of regulatory
authorities, (b) disclosure of such information is required by law
(including any disclosure requirements pursuant to federal securities laws
in connection with the filing of such Registration Statement or the use of
any Prospectus), (c) 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 (d) such information becomes available to
such Person from a source other than the Company and its subsidiaries and
such source is not known, after due inquiry, by such Person to be bound by
a confidentiality agreement; provided, further, that the foregoing
investigation shall be coordinated on behalf of such Persons by one
representative designated by and on behalf of such Persons and any such
confidential information shall be available from such representative to
such Persons so long as any Person agrees to be bound by such
confidentiality agreement;
(vii) if requested by any selling Holders or the underwriter(s) in
connection with such exchange or sale promptly include in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted Securities being
sold to such underwriter(s), the purchase price being paid therefor and any
other terms of the offering
-12-
of the Transfer Restricted Securities to be sold in such offering; and make
all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the
matters to be included in such Prospectus supplement or post-effective
amendment;
(viii) furnish to each selling Holder and each of the
underwriter(s) in connection with such exchange or sale, upon request,
without charge, at least one copy of the Registration Statement, as first
filed with the Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference); provided that the proviso of
Section 6(vi) shall apply to the extent that the Company or Xxxxxx Products
has requested confidential treatment from the Commission with respect to
any such documents;
(ix) deliver to each selling Holder and each of the underwriter(s),
if any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Company and Xxxxxx Products hereby
consent to the use (in accordance with law) of the Prospectus and any
amendment or supplement thereto by each of the selling Holders and each of
the underwriter(s), if any, in connection with the offering and the sale of
the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(x) upon the request of any selling Holder, enter into such
agreements (including an underwriting agreement) and make such
representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the disposition of
the Transfer Restricted Securities pursuant to any Shelf Registration
Statement contemplated by this Agreement as may be reasonably applicable
requested by any Holder of Transfer Restricted Securities or underwriter in
connection with any resale pursuant to any Shelf Registration Statement.
In such connection, whether or not an underwriting agreement is entered
into and whether or not the registration is an Underwritten Registration,
the Company and Xxxxxx Products shall:
(A) upon the request of any selling Holder, furnish (or in the case
of paragraphs (2) and (3), use its best efforts to cause to be
furnished) to each selling Holder and each underwriter, if any, upon
the effectiveness of the Shelf Registration Statement:
(1) a certificate, dated such date, signed on behalf of the
Company and Xxxxxx Products by (x) the President or any Vice
President and (y) a principal financial or accounting officer of
the Company and Xxxxxx Products, confirming, as of the date
thereof, the matters set forth in paragraphs (a), (b) and (d) of
Section 9 of the Purchase Agree-
-13-
ment and such other similar matters as the selling Holders,
underwriter(s) and/or Restricted Broker Dealers may reasonably
request;
(2) an opinion, dated such date, of counsel for the Company and
Xxxxxx Products covering matters similar to those set forth in
paragraph (e) of Section 9 of the Purchase Agreement and such
other matter as the selling Holders, underwriters and/or
Restricted Broker Dealers may reasonably request, and in any
event including a statement to the effect that such counsel has
participated in conferences with officers and other
representatives of the Company and Xxxxxx Products,
representatives of the independent public accountants for the
Company and Xxxxxx Products and have considered the matters
required to be stated therein and the statements contained
therein, although such counsel has not independently verified the
accuracy, completeness or fairness of such statements; and that
such counsel advises that, on the basis of the foregoing (relying
as to materiality to the extent such counsel deems appropriate
upon the statements of officers and other representatives of the
Company and Xxxxxx Products and without independent check or
verifications), no facts came to such counsel's attention that
caused such counsel to believe that the applicable Shelf
Registration Statement, at the time such Shelf Registration
Statement or any post-effective amendment thereto became
effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that
the Prospectus contained in such Shelf Registration Statement as
of its date contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. Without limiting the foregoing,
such counsel may state further that such counsel assumes no
responsibility for, and has not independently verified, the
accuracy, completeness or fairness of the financial statements,
notes and schedules and other financial data included in any
Shelf Registration Statement contemplated by this Agreement or
the related Prospectus; and
(3) a customary comfort letter, dated as of the date of
effectiveness of the Shelf Registration Statement from the
Company's independent accountants, in the customary form and
covering matters of the type customarily covered in comfort
letters to underwriters in connection with primary underwritten
offerings, and affirming the matters set forth in the comfort
letters delivered pursuant to paragraph (h) of Section 9 of the
Purchase Agreement;
-14-
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, in connection with any sale or resale
pursuant to any Shelf Registration Statement the indemnification
provisions and procedures of Section 8 hereof with respect to all
parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by the selling Holders, the underwriter(s), if
any, and Restricted Broker Dealers, if any, to evidence compliance
with clause (A) above and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the
Company and Xxxxxx Products pursuant to this clause (x).
The above shall be done at each closing under such underwriting or
similar agreement, as and to the extent required thereunder, and if at any
time the representations and warranties of the Company and Xxxxxx Products
contemplated in (A)(1) above cease to be true and correct, the Company and
Xxxxxx Products shall so advise the underwriter(s), if any, the selling
Holders promptly and if requested by such Persons, shall confirm such
advice in writing;
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if any,
and their respective counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the securities or
Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s), if any, may request in writing and do any and all other
acts or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Transfer Restricted Securities covered by the
applicable Registration Statement; provided, however, that neither the
Company nor Xxxxxx Products shall be required to register or qualify as a
foreign corporation or a dealer in securities where it is not now so
qualified or to take any action that would subject it to the service of
process in suits or to taxation, other than as to matters and transactions
relating to the Registration Statement, in any jurisdiction where it is not
now so subject;
(xii) issue, upon the request of any Holder of Series A Notes
covered by any Shelf Registration Statement contemplated by this Agreement,
Series B Notes having an aggregate principal amount equal to the aggregate
principal amount of Series A Notes surrendered to the Company by such
Holder in exchange therefor or being sold by such Holder; such Series B
Notes to be registered in the name of such Holder or in the name of the
purchaser(s) of such Series B Notes, as the case may be; in return, the
Series A Notes held by such selling Holder shall be surrendered to the
Company for cancellation;
(xiii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate
-15-
with the selling Holders and the underwriter(s), if any, to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive legends;
and to register such Transfer Restricted Securities in such denominations
and such names as the selling Holders or the underwriter(s), if any, may
request at least two Business Days prior to such sale of Transfer
Restricted Securities;
(xiv) use their respective reasonable best efforts to cause the
disposition of the Transfer Restricted Securities covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriter(s), if any, to consummate the
disposition of such Transfer Restricted Securities, subject to the proviso
contained in clause (xi) above;
(xv) subject to Section 6(c)(i), if any fact or event contemplated
by Section 6(c)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Notwithstanding
the foregoing, but without limiting the Company's or Xxxxxx Products'
obligations under Section 5 hereof, the Company and Xxxxxx Products may
postpone taking action with respect to a supplement or amendment with
respect to a Registration Statement or Prospectus contained therein for a
reasonable period of time after the occurrence of any fact or event
contemplated by Section 6(c)(iii)(D) (not exceeding 90 days) if, in the
good faith opinion of the Board of Directors of the Company or Xxxxxx
Products, effecting the registration would adversely affect a material
impending acquisition or disposition of assets or stock, merger or other
similar transaction or would require the Company or Xxxxxx Products to make
public disclosure of information which would not otherwise then be required
and which disclosure would have a material adverse effect upon the Company
or Xxxxxx Products, provided that the Company and Xxxxxx Products shall not
delay such action pursuant to the foregoing more than once in any 12 month
period;
(xvi) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration Statement
covering such Transfer Restricted Securities and provide the Trustee under
the Indenture with printed certificates, if so requested, for the Transfer
Restricted Securities which are in a form eligible for deposit with the
Depository Trust Company;
-16-
(xvii) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by
any underwriter (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of the
NASD, and use their respective best efforts to cause such Registration
Statement to become effective and approved by such governmental agencies or
authorities as may be necessary to enable the Holders selling Transfer
Restricted Securities to consummate the disposition of such Transfer
Restricted Securities; provided that neither the Company nor Xxxxxx
Products shall take any position during review by the NASD that would, in
any manner, create the implication that the offering of the Series A Notes
on the Closing Date by the Company and Xxxxxx Products should be or is
subject to the rules and regulations of the NASD;
(xviii) otherwise use their respective reasonable best efforts to
comply with all applicable rules and regulations of the Commission, and
make generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which need not be
audited) covering a twelve-month period beginning after the effective date
of the Registration Statement (as such term is defined in paragraph (c) of
Rule 158 under the Act);
(xix) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement required by
this Agreement and, in connection therewith, cooperate with the Trustee and
the Holders to effect such changes to the Indenture as may be required for
such Indenture to be so qualified in accordance with the terms of the TIA;
and execute and use its best efforts to cause the Trustee to execute, all
documents that may be required to effect such changes and all other forms
and documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner; and
(xx) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of Section 13 or
Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
--- -----------------------
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(i) or any notice from the Company of the existence of any fact of
the kind described in Section 6(c)(iii)(D) hereof (in each case, a "Suspension
----------
Notice"), such Holder will forthwith discontinue disposition of Transfer
------
Restricted Securities pursuant to the applicable Registration Statement until
(i) such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(xv) hereof, or (ii) such Holder is
advised in writing by the Company that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus (in
-17-
each case, the "Recommencement Date"). Each Holder receiving a Suspension Notice
-------------------
hereby agrees that it will either (i) destroy any Prospectuses, other than
permanent file copies, then in such Holder's possession which have been replaced
by the Company with more recently dated Prospectuses or (ii) deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of the Suspension
Notice. The time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended
by the number of days during the period from and including the date of the
delivery of the Suspension Notice to the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and Xxxxxx Products's
performance of or compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and reasonable
expenses (including filings made by any purchaser or Holder with the NASD (and,
if applicable, the fees and reasonable expenses of any "qualified independent
underwriter") and its counsel that may be required by the rules and regulations
of the NASD); (ii) all fees and expenses of compliance with federal securities
and state Blue Sky or securities laws; (iii) all expenses of printing (including
printing certificates, if applicable, for the Series B Notes to be issued in the
Exchange Offer and printing of Prospectuses), messenger and delivery services
and telephone; (iv) all fees and disbursements of counsel for the Company,
Xxxxxx Products, the trustee under the Indenture, the exchange agent and, if
any, the Holders of Transfer Restricted Securities; (v) fees and expenses of the
trustee under the Indenture and the exchange agent; and (vi) all fees and
disbursements of independent certified public accountants of the Company and
Xxxxxx Products (including the expenses of any special audit and comfort letters
required by or incident to such performance). Notwithstanding the foregoing or
anything in this Agreement to the contrary, each Holder of Transfer Restricted
Securities being registered shall pay all commissions, placement agent fees and
underwriting discounts and commissions with respect to any Transfer Restricted
Securities sold by it and the fees and disbursements of any counsel, other than
set forth in clause (iv) above and Section 7(b) hereof.
The Company will, in any event, bear its and Xxxxxx Products's
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expenses
of any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or Xxxxxx Products.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Of-
-18-
fer Registration Statement and the Shelf Registration Statement), the Company
and Xxxxxx Products will reimburse the purchasers and the Holders of Transfer
Restricted Securities being tendered in the Exchange Offer and/or resold
pursuant to the "Plan of Distribution" contained in the Exchange Offer
Registration Statement or registered pursuant to the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements of not more
than one counsel, who shall be chosen by the Holders of a majority in principal
amount of the Transfer Restricted Securities for whose benefit such Registration
Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Company and Xxxxxx Products, jointly and severally, agree to
indemnify and hold harmless each Holder, its directors, its officers and each
Person, if any, who controls such Holder (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act), (each, an "Indemnified Holder") from
and against any and all losses, claims, damages, liabilities, judgments,
(including without limitation, any reasonable legal or other expenses incurred
in connection with investigating or defending any matter, including any action
that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement, preliminary prospectus or
Prospectus (or any amendment or supplement thereto) provided by the Company or
Xxxxxx Products to any holder or any prospective purchaser of Series B Notes, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by an untrue statement or omission or alleged untrue
statement or omission that is based upon information relating to any of the
Holders furnished in writing to the Company or Xxxxxx Products by any of the
Holders; provided, further, that with respect to any such untrue statement in or
-------- -------
omission of a material fact from any preliminary Prospectus, the indemnity
agreement contained in this Section 8(a) shall not inure to the benefit of any
such Indemnified Holder from whom the person asserting any such loss, claim,
damage, liability or judgment purchased Series A Notes and Guarantees if such
person did not receive at or prior to the confirmation of the sale of the Series
A Notes and Guarantees to such person a copy of the final Prospectus in any case
where such delivery is required by the Securities Act and (A) the untrue
statement in or omission of a material fact from the preliminary Prospectus was
corrected in the final Prospectus and (B) the Company had previously complied
with Section 6(c)(ix)..
(b) Each Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless the Company and Xxxxxx Products,
and their respective directors and officers, and each person, if any, who
controls (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) the Company, or Xxxxxx Products to the same extent as the
foregoing indemnity from the Company and Xxxxxx Products to each of the
Indemnified Holders, but only with reference to information relating to such
Indemnified Holder furnished in writing to the Company or Xxxxxx Products by
such Indemnified Holder expressly for use in any Registration Statement. In no
event shall any Indemnified Holder be liable or responsible for any amount in
excess of the amount by which the total
-19-
amount received by such Indemnified Holder with respect to its sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Indemnified Holder for such Transfer Restricted Securities
and (ii) the amount of any damages that such Indemnified Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
------------------
against whom such indemnity may be sought (the "indemnifying person") in writing
---------------------
(provided, that the failure to so notify the indemnifying party shall not
relieve it from any liability which it may have under this Section 8(c) except
to the extent that it has been materially prejudiced by such failure) and the
indemnifying party shall assume the defense of such action, including the
employment of counsel reasonably satisfactory to the indemnified party and the
payment of all reasonable fees and expenses of such counsel, as incurred (except
that in the case of any action in respect of which indemnify may be sought
pursuant to both Sections 8(a) and 8(b), an Indemnified Holder shall not be
required to assume the defense of such action pursuant to this Section 8(c), but
may employ separate counsel and participate in the defense thereof, but the fees
and expenses of such counsel, except as provided below, shall be at the expense
of the Indemnified Holder). Any indemnified party shall have the right to emloy
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 the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
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 fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by a majority of the Indemnified Holders, in the case of
the parties indemnified pursuant to Section 8(a), and by the Company, in the
case of parties indemnified pursuant to Section 8(b). The indemnifying party
shall indemnify and hold harmless the indemnified party from and against any and
all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action (i) effected with its written consent or (ii) effected
without its written consent if the settlement is entered into more than forty-
five days after the indemnifying party shall have received a request from the
indemnified party for reimbursement for the fees and expenses of counsel (in any
case where such fees and expenses are at the ex-
-20-
pense of the indemnifying party) the indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such settlement
being entered into and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this
Section 8 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, 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 or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company and
Xxxxxx Products on the one hand, and the Holders, on the other hand, from their
sale of Transfer Restricted Securities or (ii) if the allocation provided by
clause 8(d)(i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
8(d)(i) above but also the relative fault of the Company and Xxxxxx Products, on
the one hand, and of the Indemnified Holder, 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 Company and Xxxxxx Products, on the
one hand, and of the Indemnified Holder, 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 or alleged omission to state a
material fact relates to information supplied by the Company or Xxxxxx Products,
on the one hand, or by the Indemnified Holder, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in the second paragraph of Section 8(a), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.
The Company, Xxxxxx Products and each Holder of Transfer Restricted
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 8(d) 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 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, damages, liabilities
or judgments
-21-
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any reasonable legal or other
expenses incurred by such indemnified party in connection with investigating or
defending any matter, including any action that could have given rise to such
losses, claims, damages, liabilities or judgments. Notwithstanding the
provisions of this Section 8, no Indemnified Holder shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the
total received by such Holder with respect to the sale of its Transfer
Restricted Securities pursuant to a Registration Statement exceeds the sum of
(A) the amount paid by such Holder for such Transfer Restricted Securities plus
(B) the amount of any damages which 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 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 8(c) are several in
proportion to the respective principal amount of Series A Notes held by each of
the Holders hereunder and not joint.
SECTION 9. RULE 144A
Each of the Company and Xxxxxx Products hereby agrees with each
Holder, for so long as any Transfer Restricted Securities remain outstanding
during any period in which the Company or Xxxxxx Products (i) is not subject to
Section 13 or 15(d) of the Exchange Act, to make available, upon request of any
Holder of Transfer Restricted Securities, to any Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A, and (ii) is subject to Section 13 or 15(d) of the
Exchange Act, to make all filings required thereby in a timely manner in order
to permit resales of such Transfer Restricted Securities pursuant to Rule 144..
SECTION 10. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in customary underwriting arrangements entered
into in connection therewith and (b) completes and executes all reasonable
questionnaires, powers of attorney, and other documents required under the terms
of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
For any Underwritten Offering, the investment banker or investment
bankers and manager or managers for any Underwritten Offering that will
administer such offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided that such investment bankers and
-22-
managers must be reasonably acceptable to the Company. Such investment bankers
and managers are referred to herein as the "underwriters."
SECTION 12. MISCELLANEOUS
(a) Remedies. The Company and Xxxxxx Products acknowledge and agree
--- --------
that any failure by the Company and/or Xxxxxx Products to comply with their
respective obligations under Sections 3 and 4 hereto 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 Xxxxxx Products' obligations under
Sections 3 and 4 hereof. The Company and Xxxxxx Products further agree to waive
the defense in any action for specific performance that a remedy at law would be
adequate.
(b) No Inconsistent Agreements. Neither the Company nor Xxxxxx
--- --------------------------
Products will, on or after the date of this Agreement, enter into any agreement
with respect to its securities that is inconsistent with the rights granted to
the Holders in this Agreement or otherwise conflicts with the provisions hereof.
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 the Company's and
Xxxxxx Products's securities under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. Neither the Company nor Xxxxxx
--- -------------------------------
Products will take any action, or voluntarily permit any change to occur, with
respect to the Notes that would materially and adversely affect the ability of
the Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not
--- ----------------------
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 12(d)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities. Notwithstanding the foregoing, a waiver or consent to
departure from the provisions hereof that relates exclusively to the rights of
Holders whose securities are being tendered pursuant to the Exchange Offer and
that does not affect directly or indirectly the rights of other Holders whose
securities are not being tendered pursuant to such Exchange Offer may be given
by the Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities subject to such Exchange Offer.
(e) Third Party Beneficiary. The Holders shall be third party
--- -----------------------
beneficiaries to the agreements made hereunder between the Company and Xxxxxx
Products, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such
-23-
agreements directly to the extent they may deem such enforcement necessary or
advisable to protect its rights or the rights of Holders hereunder.
(f) Notices. All notices and other communications provided for or
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permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telecopier or air courier
guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company or Xxxxxx Products:
By first class mail:
X.X. Xxx 00000
Xxxxxxxx, Xxxxxxx 00000
By hand-delivery or air courier:
00 Xxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
With a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, III
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
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.
Upon the date of filing of the Exchange Offer or a Shelf Registration
Statement, as the case may be, notice shall be delivered to Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation, on behalf of the Initial Purchasers (in the
form attached hereto as Exhibit A) and shall be addressed to: Attention:
Xxxxxx Xxxxxxxx (Compliance Department), 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
-24-
(g) Successors and Assigns. This Agreement shall inure to the benefit
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of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; provided nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Transfer Restricted Securities in violation of the terms hereof or 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 of 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,
including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such Person shall be entitled to receive
the benefits hereof.
(h) 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.
(i) Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
--- -------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(k) Severability. In the event that any one or more of the provisions
--- ------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(l) Entire Agreement. This Agreement is intended by the parties as a
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final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
-25-
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
XXXXXX, INC.
By:_____________________________
Name:
Title:
XXXXXX PRODUCTS COMPANY
By:_____________________________
Name:
Title:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:_______________________
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By:_______________________
Name:
Title:
-26-
EXHIBIT A
NOTICE OF FILING OF
A/B EXCHANGE OFFER REGISTRATION STATEMENT
To: Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention; Xxxxxx Xxxxxxxx (Compliance Department)
Fax: (000) 000-0000
From: Xxxxxx, Inc.
___% Senior Subordinated Notes due 2007
Date: ____________, 1997
For your information only (NO ACTION REQUIRED):
Today, _____________, 1997, we filed [an Exchange Offer
Registration Statement/a Shelf Registration Statement] with the Securities and
Exchange Commission. We currently expect this registration statement to be
declared effective within ___ business days of the date hereof.
A-1
