Exhibit 10.4
EXECUTION VERSION
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REGISTRATION RIGHTS AGREEMENT
Dated as of January 18, 2005
by and among
GENERAL NUTRITION CENTERS, INC.
THE GUARANTORS LISTED ON SCHEDULE I HERETO
and
XXXXXX BROTHERS INC.
X.X. XXXXXX SECURITIES INC.
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This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of January 18 2005, by and among General Nutrition Centers,
Inc., a Delaware corporation (the "COMPANY"), the guarantors listed on
Schedule I hereto (the "GUARANTORS") and Xxxxxx Brothers Inc. and X.X. Xxxxxx
Securities Inc. (each, an "INITIAL PURCHASER" and, collectively, the "INITIAL
PURCHASERS"), each of whom has agreed to purchase the Company's 8?% Senior
Notes due 2011 (the "INITIAL NOTES") pursuant to the Purchase Agreement (as
defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
January 11, 2005 (the "PURCHASE AGREEMENT"), by and among the Company, the
Guarantors and the Initial Purchasers. In order to induce the Initial
Purchasers to purchase the Initial 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 7 of the Purchase Agreement. Capitalized terms
used herein and not otherwise defined shall have the meaning assigned to them
in the Indenture, dated as of January 18, 2005 (the "INDENTURE"), among the
Company, the Guarantors and U.S. Bank National Association, as trustee,
relating to the Initial Notes and the Exchange Notes (as defined below).
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.
AFFILIATE: As defined in Rule 144 of the Act.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
BUSINESS DAY: Any day other than a Saturday, a Sunday or a day on
which banking institutes in The City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of the delivery by the Company
to the Registrar under the Indenture of Exchange Notes in the same aggregate
principal amount as the aggregate principal amount of Initial Notes tendered
by Holders thereof pursuant to the Exchange Offer.
CONSUMMATION DEADLINE: As defined in Section 3(b) hereof.
EFFECTIVENESS DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE NOTES: The Company's 8 1/2% Senior Notes due 2011 to be
issued pursuant to the Indenture: (i) in the Exchange Offer or (ii) as
contemplated by Section 4 hereof.
EXCHANGE OFFER: The exchange and issuance by the Company of a
principal amount of Exchange Notes (which shall be registered pursuant to the
Exchange Offer Registration Statement) equal to the outstanding principal
amount of Initial Notes that are properly tendered and not withdrawn by such
Holders in connection with such exchange and issuance, as required by the
terms of this Agreement.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, (i) that is filed pursuant to the provisions
of this Agreement, (ii) including the Prospectus included therein, and (iii)
including all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
FILING DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
HOLDERS: As defined in Section 2 hereof.
PROSPECTUS: The prospectus included in a Registration Statement at
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.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: The Exchange Offer Registration Statement or
the Shelf Registration Statement, as applicable.
RULE 144: Rule 144 promulgated under the Act.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
SUSPENSION NOTICE: As defined in Section 6(d) hereof.
SUSPENSION PERIOD: The period of time (a) that the Company may delay
filing and distributing (i) a post-effective amendment to (x) the Shelf
Registration Statement or (y) after the date on which the Exchange Offer is
Consummated, the Exchange Offer Registration Statement that is required to be
effective to permit resales of Exchange Notes by Broker-Dealers as
contemplated by Section 3(c) below or (ii) a supplement to any related
Prospectus so that, as thereafter delivered to Holders or purchasers of
Transfer Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading if the Company
determines reasonably and in good faith that compliance with the disclosure
obligations necessary to maintain the effectiveness of such Registration
Statement at such time would reasonably be expected to have a material adverse
effect on the Company or a pending financing, acquisition, disposition, merger
or other material corporate transaction involving the Company or any of its
subsidiaries (it being understood that, in the case of this clause (a), the
Company shall be required to proceed in good faith to amend such Registration
Statement or supplement to such related Prospectus to describe such events or
to otherwise cause such Registration Statement to become effective and the
related Prospectus to again be usable at such time as so doing would not have
such a material adverse effect), or (b) when (i) the Shelf Registration
Statement or (ii) after the date on which the Exchange Offer is Consummated,
the Exchange Offer Registration Statement that is required to remain effective
to permit resales of Exchange Notes by Broker-Dealers as contemplated by
Section 3(c) below, in each case, ceases to be effective or any related
Prospectus is not usable solely because the Company filed a post-effective
amendment to any such Registration Statement to include annual audited
financial information with respect to the Company and such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related Prospectus (it being understood that, in the case
of this clause (b), the Company shall be required to use its commercially
reasonable efforts to cause any such post-effective amendment to become
effective as soon as practicable); provided that such Suspension Periods shall
not occur more than 45 consecutive days, or more than 75 days in the
aggregate; and provided further that upon the termination of such Suspension
Period, the Company shall promptly advise each Holder and purchaser and, if
requested by any such person, confirm such advice in writing that such
Suspension Period has been terminated.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each Initial Note until the earliest
to occur of (a) the date on which such Initial Note has been exchanged in the
Exchange Offer by a Person other than a Broker-Dealer for an Exchange Note
entitled to be resold to the public by the Holder thereof without complying
with the prospectus delivery requirements of the Act, (b) following the
exchange by a Broker-Dealer in the Exchange Offer of an Initial Note for an
Exchange Note, the date on which such Exchange Note is sold to a purchaser who
receives from such Broker-Dealer on or prior to the date of such sale a copy
of the Prospectus contained in the Exchange Offer Registration Statement, (c)
the date on which such Initial Note has been effectively registered under the
Act and disposed of in accordance with the Shelf Registration Statement (and
the purchasers thereof have been issued Exchange Notes) or (d) the date on
which such Initial Note is distributed to the public pursuant to Rule 144.
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.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
law or Commission policy (after the procedures set forth in Section 6(a)(i)
below have been complied with), the Company and the Guarantors shall (i) cause
the Exchange Offer Registration Statement to be filed with the Commission no
later than 150 days after the Closing Date (such 150th day being the "FILING
DEADLINE"), and (ii) use all commercially reasonable efforts to cause such
Exchange Offer Registration Statement to become effective no later than 250
days after the Closing Date (such 250th day being the "EFFECTIVENESS
DEADLINE"). The Exchange Offer shall be on the appropriate form permitting (i)
registration of the Exchange Notes to be offered in exchange for the Initial
Notes that are Transfer Restricted Securities and (ii) resales of Exchange
Notes by Broker-Dealers that tendered into the Exchange Offer Initial Notes
that such Broker-Dealer acquired for its own account as a result of
market-making activities or other trading activities (other than Initial Notes
acquired directly from the Company or any of its Affiliates) as contemplated
by Section 3(c) below.
(b) The Company and the Guarantors shall use all commercially
reasonable efforts to cause the Exchange Offer Registration Statement to be
effective continuously, 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 the
Guarantors shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the Exchange Notes
shall be included in the Exchange Offer Registration Statement. The Company
and the Guarantors shall use all commercially reasonable 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, or longer, if required by the federal
securities laws (such 30th (or longer) day being the "CONSUMMATION DEADLINE").
(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 Broker-Dealer who holds Transfer Restricted Securities that
were acquired for the account of such Broker-Dealer as a result of
market-making activities or other trading activities (other than Initial Notes
acquired directly from the Company or any Affiliate of the Company), may
exchange such Transfer Restricted Securities pursuant to the Exchange Offer.
Such "Plan of Distribution" section shall also contain all other information
with respect to such sales by such 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
Transfer Restricted Securities 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. See the Shearman & Sterling
no-action letter (available July 2, 1993).
Because 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 any
Exchange Notes received by such Broker-Dealer in the Exchange Offer, the
Company and Guarantors shall permit the use of the Prospectus contained in the
Exchange Offer Registration Statement by such Broker-Dealer to satisfy such
prospectus delivery requirement. To the extent necessary to ensure that the
Prospectus contained in the Exchange Offer Registration Statement is available
for sales of Exchange Notes by Broker-Dealers, the Company and the Guarantors
agree to use all commercially reasonable efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented, amended and
current as required by and subject to the provisions of Sections 6(a) and (c)
hereof and subject to any applicable Suspension Period and in conformity 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 period ending on the date when all Transfer Restricted Securities
covered by such Registration Statement have been sold pursuant thereto;
provided, however, that if the Exchange Offer Registration Statement ceases to
be effective during any Suspension Period, such 180-day period shall be
extended by the number of days such Suspension Period continued. The Company
and the Guarantors shall provide sufficient copies of the latest version of
such Prospectus to such Broker-Dealers, promptly upon request, and in no event
later than two Business Days after such request, at any time during such
period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company and the Guarantors are not
(A) required to file the Exchange Offer Registration Statement or (B)
permitted to Consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy (after the Company and the
Guarantors have complied with the procedures set forth in Section 6(a)(i)
below) or (ii) any Holder of Transfer Restricted Securities notifies the
Company prior to 20 Business Days following Consummation of the Exchange Offer
(but not prior to the filing of the Exchange Offer Registration Statement)
that (A) such Holder was prohibited by law or Commission policy from
participating in the Exchange Offer, (B) such Holder may not resell the
Exchange Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by
such Holder or (C) such Holder is a Broker-Dealer and holds Initial Notes
acquired directly from the Company or any of its Affiliates, then the Company
and the Guarantors shall:
(x) use all commercially reasonable efforts on or prior to
45 days after the earlier of (i) the date as of which the Company determines
that the Exchange Offer Registration Statement will not be or cannot be, as
the case may be, filed as a result of clause (a)(i) above and (ii) the date on
which the Company receives the notice specified in clause (a)(ii) above (45
days after such earlier date, the "FILING DEADLINE"), to file a shelf
registration statement pursuant to Rule 415 under the Act (which may be an
amendment to the Exchange Offer Registration Statement (including the
Prospectus included therein and all amendments and supplements thereto
(including post-effective amendments) and all exhibits and material
incorporated by reference therein, the "SHELF REGISTRATION STATEMENT")),
relating to all Transfer Restricted Securities, and
(y) use all commercially reasonable efforts to cause such
Shelf Registration Statement to become effective on or prior to 75 days after
the Filing Deadline for the Shelf Registration Statement (such 75th day, the
"EFFECTIVENESS DEADLINE").
If, after the Company and the Guarantors have filed an Exchange Offer
Registration Statement that satisfies the requirements of Section 3(a) above,
the Company and the Guarantors are required to file and make effective a Shelf
Registration Statement solely because the Exchange Offer is not permitted
under applicable federal law (i.e., clause (a)(i)(B) above), then the filing
of the Exchange Offer Registration Statement shall be deemed to satisfy the
requirements of clause (x) above; provided that, in such event, the Company
and the Guarantors shall remain obligated to meet the Effectiveness Deadline
set forth in clause (y).
To the extent necessary to ensure that the Shelf Registration
Statement is available for sales of Transfer Restricted Securities by the
Holders thereof entitled to the benefit of this Section 4(a) and the other
securities required to be registered therein pursuant to Section 6(b)(ii)
hereof, the Company and the Guarantors shall use all commercially reasonable
efforts to keep any Shelf Registration Statement required by this Section 4(a)
continuously effective, supplemented, amended and current as required by and
subject to the provisions of Sections 6(b) and (c) hereof and subject to any
Suspension Period and in conformity 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 two years (as extended pursuant to Section
6(d) hereof) following the Closing Date, or such shorter period as will
terminate when all Transfer Restricted Securities covered by such Shelf
Registration Statement have been sold pursuant thereto or when all Initial
Notes or Exchange Notes cease to be Transfer Restricted Securities.
(b) Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such Holder
furnishes to the Company in writing, within 15 days after receipt of a request
therefor, the information specified in Item 507 or 508 of Regulation S-K, as
applicable, of the Act, or other information reasonably requested by the
Company and required by Regulation S-K of the Act, 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 selling Holder
agrees to promptly furnish 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 applicable Filing Deadline, (ii)
any such Registration Statement has not been declared effective by the
Commission on or prior to the applicable Effectiveness Deadline, (iii) the
Exchange Offer has not been Consummated on or prior to the Consummation
Deadline 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 for its intended purpose, except during any Suspension
Period (each such event referred to in clauses (i) through (iv), a
"REGISTRATION DEFAULT"), then the Company and the Guarantors hereby jointly
and severally agree to pay, subject to Section 4(b) hereof, to each Holder of
Transfer Restricted Securities affected thereby liquidated damages in an
amount equal to 0.25% per annum of the principal amount of Transfer Restricted
Securities held by such Holder for each day that the Registration Default
continues for the first 90-day period immediately following the occurrence of
such Registration Default. The amount of the liquidated damages shall increase
by an additional 0.25% per annum of the 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 equal to 1.00% per annum of the principal amount of Transfer
Restricted Securities; provided that the Company and the Guarantors 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), 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 accruing.
All accrued liquidated damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Indenture,
on each Interest Payment Date, as more fully set forth in the Indenture and
the Notes. Notwithstanding the fact that any securities for which liquidated
damages are due cease to be Transfer Restricted Securities, all obligations of
the Company and the Guarantors to pay liquidated damages with respect to
securities shall survive until such time as such obligations with respect to
such securities shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company and the Guarantors, and in the case of clause
(z)(ii) of this Section 6(a), each Holder (as applicable), shall (x) comply
with all applicable provisions of Section 6(c) below, (y) use all commercially
reasonable efforts to effect such exchange and to permit the resale of
Exchange Notes by Broker-Dealers that properly tendered in the Exchange Offer
Initial Notes that such Broker-Dealer acquired for its own account as a result
of its market-making activities or other trading activities (other than
Initial Notes acquired directly from the Company or any of its Affiliates)
being sold in accordance with the intended method or methods of distribution
thereof, and (z) comply with all of the following provisions:
(i) If, following the date hereof there has been announced 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 the Guarantors
hereby agree either to (x) seek a no-action letter or other favorable
decision from the Commission allowing the Company and the Guarantors to
Consummate an Exchange Offer for such Transfer Restricted Securities or
(y) file, in accordance with Section 4(a) hereof, a Shelf Registration
Statement to permit the registration and/or resale of the Transfer
Restricted Securities that would otherwise be covered by the Exchange
Offer Registration Statement but for the announcement of a change in
Commission policy. In the case of clause (x) above, the Company and the
Guarantors hereby agree to pursue the issuance of such a decision to the
Commission staff level, but shall not be required to take commercially
unreasonable actions in connection therewith. In connection with the
foregoing, the Company and the Guarantors hereby agree to take all such
other reasonable actions as may be requested by the Commission or
otherwise required in connection with the issuance of such decision,
including without limitation (A) participating in telephonic 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.
(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 (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement),
prior to the Consummation of the Exchange Offer, a written representation
to the Company and the Guarantors (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 of the
Exchange Notes to be issued in the Exchange Offer, (C) it is acquiring
the Exchange Notes in its ordinary course of business and (D) only if
such Holder is a Broker-Dealer that will receive Exchange Notes in
exchange for Initial Notes that such Broker-Dealer acquired for its own
account as a result of market-making or other trading activities, it will
deliver a Prospectus, as required by law, in connection with any sale of
such Exchange Notes. As a condition to its participation in the Exchange
Offer each Holder using the Exchange Offer to participate in a
distribution of the Exchange Notes shall acknowledge and agree that, if
the resales are of Exchange Notes obtained by such Holder in exchange for
Initial 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. (available June 5, 1991) and Exxon Capital
Holdings Corporation (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters (including, 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 the Guarantors shall, upon request of the
Commission, provide a supplemental letter to the Commission (A) stating
that the Company and the Guarantors are registering the Exchange Offer in
reliance on the position of the Commission enunciated in Exxon Capital
Holdings Corporation (available May 13, 1988), Xxxxxx Xxxxxxx and Co.,
Inc. (available June 5, 1991) as interpreted in the Commission's letter
to Shearman & Sterling dated 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 any Guarantor has entered
into any arrangement or understanding with any Person to distribute the
Exchange Notes to be received in the Exchange Offer and that, to the best
of the Company's and each Guarantor's information and belief, each Holder
participating in the Exchange Offer is acquiring the Exchange Notes in
its ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Exchange 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
Registration Statement, the Company and the Guarantors shall:
(i) comply with all the provisions of Section 6(c) below and use
all commercially reasonable efforts to effect such registration to permit
the sale of the Transfer Restricted Securities being sold in accordance
with the reasonable intended 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 the Guarantors will
prepare and file with the Commission a 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 such reasonable intended methods of distribution thereof
within the time periods and otherwise in accordance with the provisions
hereof; and
(ii) issue to any Holder or purchaser of Initial Notes covered by
any Shelf Registration Statement contemplated by this Agreement, upon the
request of any such Holder or purchaser, registered Initial Notes having
an aggregate principal amount equal to the aggregate principal amount of
Initial Notes, in the names as such Holder or purchaser shall designate.
(c) General Provisions. In connection with any Registration
Statement and any related Prospectus required by this Agreement, the
Company and the Guarantors shall:
(i) use all commercially reasonable efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or 4 hereof,
as applicable. Upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain
an untrue statement of material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading or (B) not to be effective and usable for resale of
Transfer Restricted Securities during the period required by this
Agreement, the Company and the Guarantors shall file as soon as
reasonably practicable, subject to any applicable Suspension Period, an
appropriate amendment to such Registration Statement to cure such defect,
and, if Commission review is required, use all commercially reasonable
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;
subject to any applicable Suspension Period, cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed as and to the extent required 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 reasonable intended methods of distribution by the
sellers thereof set forth in such Registration Statement or supplement to
the Prospectus;
(iii) advise promptly (x) each Holder of Transfer Restricted
Securities named in any Shelf Registration Statement (each, a "SHELF
HOLDER") (solely to the extent the provisions of this clause (iii) apply
to a Shelf Registration Statement) and (y) each Holder that is a
Broker-Dealer that tendered into the Exchange Offer Initial Notes
acquired by such Broker-Dealer for its own account as a result of
market-making activities or other trading activities (solely to the
extent the provisions of this clause (iii) apply to the Exchange Offer
Registration Statement), and, if requested by any such Holder, confirm
such advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed (other than any
Prospectus supplement that names a Holder as a selling securityholder
therein and other than the first filing of the Prospectus included in the
Exchange Offer Registration Statement), and, with respect to any
applicable Registration Statement or any post-effective amendment
thereto, when the same has become effective (other than the initial
effectiveness of the Exchange Offer Registration Statement), (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 and (E) of any Suspension
Period. 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 the Guarantors shall use all commercially reasonable
efforts to obtain the withdrawal or lifting of such order at the earliest
possible time;
(iv) 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 as
soon as reasonably practicable, subject to any applicable Suspension
Period, 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;
(v) furnish to counsel for the Initial Purchasers provided in
Section 7(b) and to each Shelf Holder, in each case, in connection with
such exchange or sale, if any, before filing with the Commission, copies
of any Registration Statement (in the case of such counsel) or of any
Shelf Registration Statement (in the case of any such Shelf Holder) or
any Prospectus included therein or any amendments or supplements to any
such Registration Statement or Prospectus (including, upon request, 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 counsel or, if applicable, such Shelf Holders in
connection with such sale, if any, for a period of at least three
Business Days, and the Company will reasonably consider any comments
timely provided by such counsel or, if applicable, any such Shelf Holder;
provided that the Company need not furnish (x) any amendment or
supplement to any Registration Statement that solely names a Holder as a
selling securityholder therein or (y) the first filing of the Exchange
Offer Registration Statement; provided further, however, that the Company
shall furnish to any Shelf Holder any amendment or supplement to an
effective Shelf Registration Statement that names such Shelf Holder as a
selling securityholder therein;
(vi) upon request, prior to the filing of any document that is to
be incorporated by reference into a Registration Statement or Prospectus
in connection with such exchange or sale, if any, provide copies of such
document to counsel for the Initial Purchasers provided in Section 7(b)
and, in connection with any Shelf Registration Statement, each Shelf
Holder; provided that this requirement shall not be applicable to any
document to be filed by the Company in connection with its periodic
reporting requirements under the Exchange Act, including with respect to
reports to be filed on Form 8-K, Form 10-Q or Form 10-K;
(vii) in connection with any underwritten offering pursuant to a
Shelf Registration Statement, make available upon reasonable request, at
reasonable times, for inspection by Holders of at least 50% in aggregate
principal amount of the Transfer Restricted Securities covered by such
Shelf Registration Statement (the "MAJORITY HOLDERS") and any attorney or
accountant retained by such Holders solely for the purpose of conducting
a due diligence investigation in connection with such underwritten
offering, all financial and other records, pertinent corporate documents
of the Company and the Guarantors and cause the Company's and the
Guarantors' officers and employees to supply all information reasonably
requested by any such Majority Holders, attorney or accountant in
connection with such Shelf Registration Statement or any post-effective
amendment thereto subsequent to the filing thereof and prior to its
effectiveness; provided that any Holder or representative thereof
requesting or receiving such information shall agree to be bound by
reasonable confidentiality agreements and procedures with respect
thereto;
(viii) if reasonably requested by any Holders in connection with
such exchange or sale, include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such Holders may reasonably request to
have included therein that is required by the federal securities laws to
be so included, including, without limitation, information relating to
the "Plan of Distribution" of the Transfer Restricted Securities; 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;
(ix) upon request, furnish to each Shelf Holder in connection with
such registration or sale, without charge, at least one copy of the Shelf
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);
(x) upon request, deliver to each Holder without charge, as many
copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request;
provided that any such copies shall only be provided to (x) Shelf Holders
and (y) Broker-Dealers in order to permit the use of the Prospectus
contained in the Exchange Offer Registration Statement by such
Broker-Dealer to satisfy its prospectus delivery requirement; the Company
and the Guarantors hereby consent to the use (in accordance with and as
required by law) of the Prospectus and any amendment or supplement
thereto by each selling Holder in connection with the offering and the
sale of the Transfer Restricted Securities covered by the Prospectus or
any amendment or supplement thereto;
(xi) in connection with an underwritten offering pursuant to a
Shelf Registration Statement, upon the reasonable request of the Majority
Holders, enter into such agreements (including underwriting agreements)
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. In such
connection, the Company and the Guarantors shall:
(A) upon the reasonable request of the Majority Holders,
furnish (or in the case of paragraphs (2) and (3), use all
commercially reasonable efforts to cause to be furnished), upon the
consummation of such underwritten offering:
(1) to the Holders participating in such underwritten
offering, a certificate, dated such date, signed on behalf of
the Company and each Guarantor by (x) the President or any Vice
President and (y) a principal financial or accounting officer
of the Company and such Guarantor, confirming, as of the date
thereof, such matters as the Majority Holders may reasonably
request;
(2) to the Holders participating in such underwritten
offering, an opinion, dated the date of consummation of such
underwritten offering, of counsel for the Company and the
Guarantors in customary form and covering such matters
customarily provided to selling securityholders in an
underwritten offering and such other matters as the Majority
Holders may reasonably request; and
(3) to each underwriter of such underwritten offering,
a customary comfort letter, dated the date of consummation of
such underwritten offering, 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 underwritten offerings; and
(B) deliver such other documents and certificates as may be
reasonably requested by the Majority Holders to evidence compliance
with the matters covered in clause (A) above and with any customary
conditions contained in the any agreement entered into by the
Company and the Guarantors pursuant to this clause (xi);
(xii) prior to any public offering of Transfer Restricted
Securities pursuant to a Shelf Registration Statement, cooperate with the
Shelf Holders and their 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 Shelf Holders may
reasonably request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the applicable Registration Statement;
provided, however, that neither the Company nor any Guarantor shall be
required to register or qualify as a foreign corporation 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;
(xiii) if certificated securities are permitted pursuant to the
Indenture, in connection with any sale of Transfer Restricted Securities
that will result in such securities no longer being Transfer Restricted
Securities, cooperate with the Holders 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 may request at least two Business Days
prior to such sale of Transfer Restricted Securities;
(xiv) use all commercially reasonable 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 to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xii)
above;
(xv) 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 global certificates for the Transfer Restricted
Securities which are in a form eligible for deposit with the Depository
Trust Company;
(xvi) otherwise use all commercially efforts to comply with all
applicable rules and regulations of the Commission, including Rule 158
under the Act; and
(xvii) 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 all commercially reasonable 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.
(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)(iii)(C) or any notice from the Company of the existence of any
fact of the kind described in Section 6(c)(iii)(D) hereof or of any applicable
Suspension Period (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 has received
copies of the supplemented or amended Prospectus contemplated by Section
6(c)(iv) 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 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 a number of days equal to the
number of days in the period from and including the date of delivery of the
Suspension Notice to the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Guarantors'
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 expenses; (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 for the Exchange 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 and the Guarantors and
of one counsel for the Shelf Holders as a group, as selected by the Majority
Holders; (v) all application and filing fees in connection with listing the
Exchange Notes on a national securities exchange or automated quotation system
pursuant to the requirements hereof; and (vi) all fees and disbursements of
independent certified public accountants of the Company and the Guarantors
(including any expenses of any special audit and comfort letters required by
or incident to such performance).
The Company will, in any event, bear its and the Guarantors' 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 the Guarantors.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company and the
Guarantors will reimburse the Initial Purchasers for the reasonable fees and
disbursements of not more than one counsel, who shall be Xxxxxx & Xxxxxxx LLP,
unless another firm shall be chosen by the Initial Purchasers.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors agree, jointly and severally, to
indemnify and hold harmless each Holder, its directors, 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), from and against any and all
losses, claims, damages, liabilities, judgments, (including without
limitation, any 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), 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 (in the case of a preliminary
prospectus or Prospectus or any supplement thereto, in the light of the
circumstances under which they were made) 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 by any of the Holders. In addition, the Company shall not be liable to
any Holder under the indemnity agreement in this Section 8(a) to the extent,
but only to the extent, that (1) such loss, claim, damage or liability arises
out of, or is based upon, an untrue statement of a material fact or an
omission of a material fact contained in any preliminary prospectus, which
untrue statement or omission was completely corrected in the Prospectus and
(2) the Company sustains the burden of proving that such Holder sold Transfer
Restricted Securities to the person alleging such loss, claim, damage or
liability without sending or giving a copy of the Prospectus within the time
required by the Act and (3) the Company had previously furnished sufficient
quantities of the Prospectus to such Holder in such amounts and within such
period of time as required under this Agreement and (4) such Holder failed to
deliver the Prospectus, if required by law to have so delivered it, and such
delivery would have been a complete defense against the person asserting such
loss, claim, damage or liability.
(b) Each Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless the Company and the
Guarantors, 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 the Guarantors to the same extent as the
foregoing indemnity from the Company and the Guarantors set forth in Section
8(a) above, but only with reference to information relating to such Holder
furnished in writing to the Company by such Holder expressly for use in any
Registration Statement. In no event shall any Holder, its directors, officers
or any Person who controls such Holder be liable or responsible for any amount
in excess of the amount by which the total amount received by such Holder with
respect to its sale of Transfer Restricted Securities pursuant to a
Registration Statement exceeds (i) the amount paid by such Holder for such
Transfer Restricted Securities and (ii) the amount of any damages that such
Holder, its directors, officers or any Person who controls such 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 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 indemnity
may be sought pursuant to both Sections 8(a) and 8(b), a 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 Holder). Any indemnified party shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
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
Holders, in the case of the parties indemnified pursuant to Section 8(a), and
by the Company and Guarantors, 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 (a) the settlement is entered into more than twenty Business Days after the
indemnifying party 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 expense of the indemnifying party), (b) such
indemnifying party received notice of the terms of such settlement at least 10
Business Days prior to such settlement being entered into and (c) such
indemnifying party did not reimburse such indemnified party in accordance with
such request prior to the date of such settlement; provided that an
indemnifying party shall not be liable for any such settlement effected
without its consent if such indemnifying party, prior to the date of such
settlement, (1) reimburses such indemnified party in accordance with such
request for the amount of such fees and expenses of counsel as the
indemnifying party believes in good faith to be reasonable, and (2) provides
written notice to the indemnified party that the indemnifying party disputes
in good faith the reasonableness of the unpaid balance of such fees and
expenses. 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 the Guarantors, 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) above 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 the Guarantors, on the one hand, and of the 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 the
Guarantors, on the one hand, and of the 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 such
Guarantor, on the one hand, or by the 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 Company, the Guarantors and each Holder 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 referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
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 Holder, its directors, its officers or any Person, if any,
who controls such 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 Transfer Restricted Securities pursuant to a
Registration Statement exceeds (i) the amount paid by such Holder for such
Transfer Restricted Securities and (ii) 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(d) are several in proportion to the respective principal
amount of Transfer Restricted Securities held by each Holder hereunder and not
joint.
SECTION 9. RULE 144A AND RULE 144
The Company and each Guarantor agrees with each Holder, for so long
as any Transfer Restricted Securities remain outstanding and during any period
in which the Company or such Guarantor (i) is not subject to Section 13 or
15(d) of the Exchange Act, to make available, upon request of any Holder, to
such 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 under the
Act, and (ii) is subject to Section 13 or 15 (d) of the Exchange Act, to make
all filings required thereby in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144.
SECTION 10. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors acknowledge and agree
that any failure by the Company and/or the Guarantors to comply with their
respective obligations under Sections 3 and 4 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, any
Initial Purchaser or any Holder may obtain such relief as may be required to
specifically enforce the Company's and the Guarantors' obligations under
Sections 3 and 4 hereof. The Company and the Guarantors further agree to waive
the defense in any action for specific performance that a remedy at law would
be adequate.
(b) No Inconsistent Agreements. Neither the Company nor any Guarantor
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.
Neither the Company nor any Guarantor has previously entered into any
agreement granting any registration rights with respect to its securities to
any Person that would require such securities to be included in any
Registration Statement filed hereunder. 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 the Guarantors' securities
under any agreement in effect on the date hereof.
(c) 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 10(c)(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 (excluding Transfer Restricted Securities
held by the Company or its Affiliates). Notwithstanding the foregoing, a
waiver or consent to departure from the provisions hereof that relates
exclusively to the rights of Holders whose Transfer Restricted Securities are
being tendered pursuant to the Exchange Offer, and that does not affect
directly or indirectly the rights of other Holders whose Transfer Restricted
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.
(d) Additional Guarantors. The Company shall cause any of its
Restricted Subsidiaries (as defined in the Indenture) that becomes, prior to
the consummation of the Exchange Offer, a Guarantor in accordance with the
terms and provisions of the Indenture to become a party to this Agreement as a
Guarantor. It is understood and agreed that if, prior to the Exchange Offer, a
Guarantor that has executed this Agreement is no longer a Guarantor under the
Indenture pursuant to and in accordance with the provisions of the Indenture,
such Guarantor shall no longer be a Guarantor for purposes of this Agreement.
(e) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Guarantors, 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
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
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 the Guarantors:
General Nutrition Centers, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Chief Legal Officer
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx
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.
(g) Successors and Assigns. This Agreement shall inure to the benefit
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; provided that 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
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 NEW YORK, INCLUDING WITHOUT LIMITATION SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(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
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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
GENERAL NUTRITION CENTERS, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President, Chief Legal
Officer and Secretary
GENERAL NUTRITION INVESTMENT COMPANY
NUTRA SALES CORPORATION
GNC (CANADA) HOLDING COMPANY
GENERAL NUTRITION DISTRIBUTION COMPANY
GENERAL NUTRITION GOVERNMENT SERVICES, INC.
GENERAL NUTRITION INTERNATIONAL, INC.
GN INVESTMENT, INC.
GNC CANADA LIMITED
GNC US DELAWARE, INC.
GENERAL NUTRITION SYSTEMS, INC.
INFORMED NUTRITION, INC.
GENERAL NUTRITION CORPORATION
GENERAL NUTRITION DISTRIBUTION, L.P.
GENERAL NUTRITION INCORPORATED
GNC FRANCHISING, LLC
NUTRA MANUFACTURING, INC.
GENERAL NUTRITION COMPANIES, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Senior Vice President, Chief Legal
Officer and Secretary
XXXXXX BROTHERS INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxxx
Title: Managing Director
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Vice President
SCHEDULE I
General Nutrition Investment Company
Nutra Sales Corporation
GNC (Canada) Holding Company
General Nutrition Distribution Company
General Nutrition Government Services, Inc.
General Nutrition International, Inc.
GN Investment, Inc.
GNC Canada Limited
GNC US Delaware, Inc.
General Nutrition Systems, Inc.
Informed Nutrition, Inc.
General Nutrition Corporation
General Nutrition Distribution, L.P.
General Nutrition Incorporated
GNC Franchising, LLC
Nutra Manufacturing, Inc.
General Nutrition Companies, Inc.
