REGISTRATION RIGHTS AGREEMENT
Exhibit 4.2
EXECUTION VERSION
EXECUTION VERSION
This REGISTRATION RIGHTS AGREEMENT dated November 10, 2009 (the “Agreement”) is entered into
by and among Colt Defense LLC, a Delaware limited liability company (the “Company”), its
wholly-owned, direct subsidiary, Colt Finance Corp., a Delaware corporation (“Colt Finance” and,
together with the Company, the “Issuers”), the Guarantors (as defined in Section 1 below), and X.X.
Xxxxxx Securities Inc. (“JPMorgan”), as representative of the Initial Purchasers listed in Schedule
1 of the Purchase Agreement (collectively, the “Initial Purchasers”).
The Issuers, the Guarantors and JPMorgan, as representative of the Initial Purchasers, are
parties to the Purchase Agreement dated November 3, 2009 (the “Purchase Agreement”), which provides
for the sale by the Issuers to the Initial Purchasers of $250,000,000 aggregate principal amount of
the Issuers’ 8.75% Senior Notes due 2017 (the “Securities”) which will be guaranteed on an
unsecured senior basis by each of the Guarantors. As an inducement to JPMorgan, as representative
of the Initial Purchasers, to enter into the Purchase Agreement, the Issuers and the Guarantors
have agreed to provide to the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution and delivery of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the following
meanings:
“Additional Guarantor” shall mean any subsidiary of the Company that executes a Subsidiary
Guarantee under the Indenture after the date of this Agreement.
“Business Day” shall mean any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed.
“Company” shall have the meaning set forth in the preamble and shall also include the
Company’s successors.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time,
and the rules and regulations of the SEC promulgated thereunder.
“Exchange Dates” shall have the meaning set forth in Section 2(a)(ii) hereof.
“Exchange Offer” shall mean the exchange offer by the Issuers and the Guarantors of Exchange
Securities for Registrable Securities pursuant to Section 2(a) hereof.
“Exchange Offer Registration” shall mean a registration under the Securities Act effected
pursuant to Section 2(a) hereof.
“Exchange Offer Registration Statement” shall mean an exchange offer registration statement on
Form S-4 (or, if applicable, on another appropriate form) under the Securities Act with respect to
the Exchange Offer and all amendments and supplements to such registration statement, in each case
including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any
document incorporated by reference therein.
“Exchange Securities” shall mean senior notes issued by the Issuers and guaranteed by the
Guarantors under the Indenture containing terms identical to the Securities (except that the
Exchange Securities will not be subject to restrictions on transfer or to any increase in annual
interest rate for failure to comply with this Agreement) and to be offered to Holders of Securities
in exchange for Securities pursuant to the Exchange Offer.
“Free Writing Prospectus” means each free writing prospectus (as defined in Rule 405 under the
Securities Act) prepared by or on behalf of the Issuers or used or referred to by the Issuers in
connection with the sale of the Securities or the Exchange Securities.
“Guarantors” shall mean, collectively, the guarantors listed in Schedule 1 hereto, any
successors thereof and any Additional Guarantors.
“Holders” shall mean the Initial Purchasers, for so long as they own any Registrable
Securities, and each of their successors, assigns and direct and indirect transferees who become
owners of Registrable Securities under the Indenture; provided that for purposes of Sections 4 and
5 of this Agreement, the term “Holders” shall include Participating Broker-Dealers.
“Indemnified Person” shall have the meaning set forth in Section 5(c) hereof.
“Indemnifying Person” shall have the meaning set forth in Section 5(c) hereof.
“Indenture” shall mean the Indenture relating to the Securities dated as of November 10, 2009
among the Issuers, the Guarantors and Wilmington Trust FSB, as trustee, and as the same may be
amended from time to time in accordance with the terms thereof.
“Initial Purchasers” shall have the meaning set forth in the preamble.
“Inspector” shall have the meaning set forth in Section 3(a)(xiv)
hereof.
“Issuer Information” shall have the meaning set forth in Section
5(a) hereof.
“JPMorgan” shall have the meaning set forth in the
preamble.
“Majority Holders” shall mean the Holders of a majority of the aggregate principal amount of
the outstanding Registrable Securities; provided that whenever the consent or approval of Holders
of a specified percentage of Registrable Securities is required hereunder, any Registrable
Securities owned directly or indirectly by the Issuers or any of its affiliates shall not be
counted in determining whether such consent or approval was given by the Holders of such required
percentage or amount; and provided, further, that if the Issuers shall issue any additional
Securities under the Indenture prior to consummation of the Exchange Offer or, if applicable, the
effectiveness of any Shelf Registration Statement, such additional Securities and the Registrable
Securities to which this Agreement relates shall be treated together as one class for purposes of
determining whether the consent or approval of Holders of a specified percentage of Registrable
Securities has been obtained.
“Participating Broker-Dealer” shall have the meaning set forth in Section 4(a) hereof.
“Person” shall mean an individual, partnership, limited liability company, corporation, trust
or unincorporated organization, or other legal entity or a government or agency or political
subdivision thereof.
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“Prospectus” shall mean the prospectus included in, or, pursuant to the rules and regulations
of the Securities Act, deemed a part of, a Registration Statement, including any preliminary
prospectus, and any such prospectus as amended or supplemented by any prospectus supplement,
including a prospectus supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all other amendments and
supplements to such prospectus, and in each case including any document incorporated by reference
therein.
“Purchase Agreement” shall have the meaning set forth in the preamble.
“Registrable Securities” shall mean the Securities; provided that the Securities shall cease
to be Registrable Securities (i) when a Registration Statement with respect to such Securities has
become effective under the Securities Act and such Securities have been exchanged or disposed of
pursuant to such Registration Statement or (ii) when such Securities cease to be outstanding.
“Registration Expenses” shall mean any and all expenses incident to the performance of or
compliance by the Issuers and the Guarantors with this Agreement, including without limitation: (i)
all SEC, stock exchange or Financial Industry Regulatory Authority (“FINRA”) registration and
filing fees, (ii) all fees and expenses incurred in connection with compliance with state
securities or blue sky laws (including reasonable fees and disbursements of one counsel for any
Underwriters or Holders in connection with blue sky qualification of any Exchange Securities or
Registrable Securities), (iii) all expenses of any Persons in preparing or assisting in preparing,
word processing, printing and distributing any Registration Statement, any Prospectus, any Free
Writing Prospectus and any amendments or supplements thereto and any other related documents
relating to the performance of and compliance with this Agreement, (iv) all rating agency fees, (v)
all fees and disbursements relating to the qualification of the Indenture under applicable
securities laws, (vi) the fees and disbursements of the Trustee and its counsel, (vii) the fees and
disbursements of counsel for the Issuers and the Guarantors and, in the case of a Shelf
Registration Statement, the fees and disbursements of one counsel for the Holders (which counsel
shall be selected by the Majority Holders and which counsel may also be counsel for the Initial
Purchasers), and (viii) the fees and disbursements of the independent public accountants of the
Issuers and the Guarantors, including the expenses of any special audits or “comfort” letters
required by or incident to the performance of and compliance with this Agreement, but excluding
fees and expenses of counsel to the Underwriters (other than fees and expenses set forth in clause
(ii) above) or the Holders and underwriting discounts and commissions, brokerage commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable Securities by a Holder.
“Registration Statement” shall mean any registration statement under the Securities Act of the
Issuers and the Guarantors that covers any of the Exchange Securities or Registrable Securities
pursuant to the provisions of this Agreement and all amendments and supplements to any such
registration statement, including post-effective amendments, in each case including the Prospectus
contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by
reference therein.
“SEC” shall mean the United States Securities and Exchange Commission.
“Securities” shall have the meaning set forth in the preamble.
“Securities Act” shall mean the Securities Act of 1933, as amended from time to time, and the
rules and regulations of the SEC promulgated thereunder.
“Shelf Additional Interest Date” shall have the meaning set forth in Section 2(d) hereof.
“Shelf Effectiveness Period” shall have the meaning set forth in Section 2(b) hereof.
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“Shelf Registration” shall mean a registration effected pursuant to Section 2(b) hereof.
“Shelf Registration Statement” shall mean a “shelf” registration statement of the Issuers and
the Guarantors that covers all or a portion of the Registrable Securities (but no other securities
unless approved by a majority of the Holders whose Registrable Securities are to be covered by such
Shelf Registration Statement) on an appropriate form under Rule 415 under the Securities Act, or
any similar rule that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case including the Prospectus
contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by
reference therein.
“Shelf Request” shall have the meaning set forth in Section 2(b) hereof.
“Subsidiary Guarantees” shall mean the guarantees of the Securities and Exchange Securities by
the Guarantors under the Indenture.
“Staff” shall mean the staff of the SEC.
“Target Registration Date” shall have the meaning set forth in Section 2(d) hereof.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended from time to
time.
“Trustee” shall mean the trustee with respect to the Securities under the Indenture.
“Underwriter” shall have the meaning set forth in Section 3(e) hereof.
“Underwritten Offering” shall mean an offering in which Registrable Securities are sold to an
Underwriter for reoffering to the public.
(a) To the extent not prohibited by any applicable law or applicable interpretations of the
Staff, the Issuers and the Guarantors shall use their reasonable best efforts to (i) cause to be
filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the
Registrable Securities for Exchange Securities and (ii) have such Registration Statement remain
effective until 180 days after the last Exchange Date for use by one or more Participating
Broker-Dealers. The Issuers and the Guarantors shall commence the Exchange Offer promptly after the
Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable
best efforts to complete the Exchange Offer not later than 60 days after such effective date.
The Issuers and the Guarantors shall commence the Exchange Offer by mailing the related
Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder
providing for and stating, in addition to such other disclosures as are required by applicable law,
substantially the following:
| (i) | that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange; | |
| (ii) | the dates of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is mailed) (the “Exchange Dates”); |
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| (iii) | that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein; | |
| (iv) | that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and | |
| (v) | that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing its election to have such Registrable Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. |
As a condition to participating in the Exchange Offer, a Holder will be required to represent
to the Issuers and the Guarantors that (i) any Exchange Securities to be received by it will be
acquired in the ordinary course of its business, (ii) at the time of the commencement of the
Exchange Offer it has no arrangement or understanding with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of
the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule
405 under the Securities Act) of the Issuers or any Guarantor and (iv) if such Holder is a
broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable
Securities that were acquired as a result of market-making or other trading activities, then such
Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus
to purchasers) in connection with any resale of such Exchange Securities.
As soon as practicable after the last Exchange Date, the Issuers and the Guarantors shall:
| (i) | accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and | |
| (ii) | deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuers and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. |
The Issuers and the Guarantors shall use their reasonable best efforts to complete the
Exchange Offer as provided above and shall comply with the applicable requirements of the
Securities Act, the Exchange Act and other applicable laws and regulations in connection with the
Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate any applicable law or applicable interpretations of the Staff.
(b) In the event that (i) the Issuers and the Guarantors determine that the Exchange Offer
Registration provided for in Section 2(a) above is not available or may not be completed as soon as
practicable after the last Exchange Date because it would violate any applicable law or applicable
interpretations of the Staff, (ii) the Exchange Offer is not for any other reason completed on or
prior to 540 days after the date hereof or (iii) upon receipt of a written request (a “Shelf
Request”) from any Initial Purchaser representing that it holds Registrable Securities that were
ineligible to be exchanged in the
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Exchange Offer, the Issuers and the Guarantors shall, to the extent not prohibited by applicable
law or applicable interpretations by the Staff, use reasonable best efforts to cause to be filed as
soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf
Registration Statement providing for the sale of all the Registrable Securities by the Holders
thereof and to have such Shelf Registration Statement become effective.
In the event that the Issuers and the Guarantors are required to file a Shelf Registration
Statement pursuant to clause (iii) of the preceding sentence, the Issuers and the Guarantors shall
use their reasonable best efforts to file and have become effective, in addition to the Exchange
Offer Registration Statement filed pursuant to Section 2(a) with respect to all Registrable
Securities, a Shelf Registration Statement (which may be a combined Registration Statement with the
Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities
held by the Initial Purchasers after completion of the Exchange Offer.
In the event the Issuers and the Guarantors are required to file a Shelf Registration
Statement pursuant to this Section 2(b), the Issuers and the Guarantors agree to use their
reasonable best efforts to keep the Shelf Registration Statement continuously effective until the
expiration of the period referred to in Rule 144 (or any similar rule then in force, but not Rule
144A) under the Securities Act with respect to the Registrable Securities or such shorter period
that will terminate when all the Registrable Securities covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The
Issuers and the Guarantors further agree to supplement or amend the Shelf Registration Statement,
the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or
instructions applicable to the form used by the Issuers for such Shelf Registration Statement or by
the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a
Holder of Registrable Securities with respect to information relating to such Holder, and to use
their reasonable best efforts to cause any such amendment to become effective, if required, and
such Shelf Registration Statement, Prospectus or Free Writing Prospectus, as the case may be, to
become usable as soon as thereafter practicable. The Issuers and the Guarantors agree to furnish to
the Holders of Registrable Securities copies of any such supplement or amendment promptly after its
being used or filed with the SEC.
(c) The Issuers and the Guarantors shall pay all Registration Expenses in connection with any
registration pursuant to Section 2(a) or Section 2(b) hereof. Each Holder shall pay all
underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating
to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf
Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be
deemed to have become effective unless it has been declared effective by the SEC. A Shelf
Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC or is automatically effective upon filing with the
SEC as provided by Rule 462 under the Securities Act.
In the event that either the Exchange Offer is not completed or the Shelf Registration
Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof (but not Section 2(b)(iii)
hereof), does not become effective on or prior to the date that is 540 days after the date hereof
(the “Target Registration Date”), the interest rate on the Registrable Securities will be increased
by 0.25% per annum with respect to each 90-day period that passes, up to a maximum of 1.00% per
annum until the Exchange Offer is completed or the Shelf Registration Statement, if required
hereby, becomes effective or the Securities become freely tradable under the Securities Act. In the
event that the Issuers receive a Shelf Request pursuant to Section 2(b)(iii), and the Shelf
Registration Statement (or Registration Statement combining the Exchange Offer Registration
Statement and the Shelf Registration Statement) required to be filed thereby does not become
effective by the later of (x) the date that is 540 days after the date hereof or (y) 90 days after
the delivery of such Shelf
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Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the
Registrable Securities will be increased by 0.25% per annum with respect to each 90-day period that
passes, up to a maximum of 1.00% per annum until the Shelf Registration Statement becomes effective
or the Securities become freely tradable under the Securities Act.
If the Shelf Registration Statement, if required hereby, has become effective and thereafter
either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case
whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and
such failure to remain effective or usable exists for more than 30 days (whether or not
consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be
increased by 0.25% per annum with respect to each 90-day period that passes, up to a maximum of
1.00% per annum commencing on the 31st day in such 12-month period and ending on such date that the
Shelf Registration Statement has again become effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the
Issuers and the Guarantors acknowledge that any failure by the Issuers or the Guarantors to comply
with their obligations under Section 2(a) and Section 2(b) hereof may result in material
irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy
at law, that it will not be possible to measure damages for such injuries precisely and that, in
the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may
be required to specifically enforce the Issuers’ and the Guarantors’ obligations under Section 2(a)
and Section 2(b) hereof.
(a) In connection with their obligations pursuant to Section 2(a) and Section 2(b) hereof, the
Issuers and the Guarantors shall:
(i) prepare and file with the SEC a Registration Statement on the appropriate form under the
Securities Act, which form (x) shall be selected by the Issuers and the Guarantors, (y) shall, in
the case of a Shelf Registration, be available for the resale of the Registrable Securities by the
Holders thereof and (z) shall comply as to form in all material respects with the requirements of
the applicable form and include all financial statements required by the SEC to be filed therewith;
and use their reasonable best efforts to cause such Registration Statement to become effective and
remain effective for the applicable period in accordance with Section 2 hereof;
(ii) prepare and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration Statement effective for the
applicable period in accordance with Section 2 hereof and cause each Prospectus to be supplemented
by any required prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424
under the Securities Act; and keep each Prospectus current during the period described in Section
4(3) of and Rule 174 under the Securities Act that is applicable to transactions by brokers or
dealers with respect to the Registrable Securities or Exchange Securities;
(iii) to the extent any Free Writing Prospectus is used, file with the SEC any Free Writing
Prospectus that is required to be filed by the Issuers or the Guarantors with the SEC in accordance
with the Securities Act and to retain any Free Writing Prospectus not required to be filed;
(iv) in the case of a Shelf Registration, furnish to each Holder of Registrable Securities, to
counsel for the Initial Purchasers, to counsel for such Holders and to each Underwriter of an
Underwritten Offering of Registrable Securities, if any, without charge, as many copies of each
Prospectus, preliminary prospectus or Free Writing Prospectus, and any amendment or supplement
thereto, as such Holder, counsel or Underwriter
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may reasonably request in order to facilitate the sale or other disposition of the Registrable
Securities thereunder; and the Issuers and the Guarantors consent to the use of such Prospectus,
preliminary prospectus or such Free Writing Prospectus and any amendment or supplement thereto in
accordance with applicable law by each of the Holders of Registrable Securities and any such
Underwriters in connection with the offering and sale of the Registrable Securities covered by and
in the manner described in such Prospectus, preliminary prospectus or such Free Writing Prospectus
or any amendment or supplement thereto in accordance with applicable law;
(v) use their reasonable best efforts to register or qualify the Registrable Securities under
all applicable state securities or blue sky laws of such jurisdictions as any Holder of Registrable
Securities covered by a Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement becomes effective; cooperate with such Holders in connection with
any filings required to be made with FINRA; and do any and all other acts and things that may be
reasonably necessary to enable each Holder to complete the disposition in each such jurisdiction of
the Registrable Securities owned by such Holder; provided that neither the Issuers nor any
Guarantor shall be required to (1) qualify as a foreign corporation or other entity or as a broker
or dealer in securities in any such jurisdiction where it would not otherwise be required to so
qualify, (2) file any general consent to service of process in any such jurisdiction or (3) subject
itself to taxation in any such jurisdiction if it is not so subject;
(vi) notify counsel for the Initial Purchasers and, in the case of a Shelf Registration,
notify each Holder of Registrable Securities and counsel for such Holders promptly and, if
requested by any such Holder or counsel, confirm such notification in writing (1) when a
Registration Statement has become effective, when any post-effective amendment thereto has been
filed and becomes effective, when any Free Writing Prospectus has been filed or any amendment or
supplement to the Prospectus or any Free Writing Prospectus has been filed, (2) of any request by
the SEC or any state securities authority for amendments and supplements to a Registration
Statement, Prospectus or any Free Writing Prospectus or for additional information after the
Registration Statement has become effective, (3) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, including the receipt by the Issuers of any notice
of objection of the SEC to the use of a Shelf Registration Statement or any post-effective
amendment thereto pursuant to Rule 401 (g)(2) under the Securities Act, (4) if, between the
applicable effective date of a Shelf Registration Statement and the closing of any sale of
Registrable Securities covered thereby, the representations and warranties of the Issuers or any
Guarantor contained in any underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to an offering of such Registrable Securities cease to be true and
correct in all material respects or if the Issuers or any Guarantor receives any notification with
respect to the suspension of the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding for such purpose, (5) of the happening of any
event during the period a Registration Statement is effective that makes any statement made in such
Registration Statement or the related Prospectus or any Free Writing Prospectus untrue in any
material respect or that requires the making of any changes in such Registration Statement or
Prospectus or any Free Writing Prospectus in order to make the statements therein not misleading
and (6) of any determination by the Issuers or any Guarantor that a post-effective amendment to a
Registration Statement or any amendment or supplement to the Prospectus or any Free Writing
Prospectus would be appropriate;
(vii) use their reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement or, in the case of a Shelf Registration, the resolution
of any objection of the SEC pursuant to Rule 401 (g)(2), including by filing an amendment to such
Shelf Registration Statement on the proper form as soon as practicable and provide immediate notice
to each Holder of the withdrawal of any such order or such resolution;
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(viii) in the case of a Shelf Registration, furnish to each Holder of Registrable Securities,
without charge, at least one conformed copy of each Registration Statement and any post-effective
amendment thereto (without any documents incorporated therein by reference or exhibits thereto,
unless requested);
(ix) in the case of a Shelf Registration, cooperate with the Holders of Registrable Securities
to facilitate the timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends and enable such Registrable
Securities to be issued in such denominations and registered in such names (all consistent with the
provisions of the Indenture) as such Holders may reasonably request at least one Business Day prior
to the closing of any sale of Registrable Securities;
(x) in the case of a Shelf Registration, upon the occurrence of any event contemplated by
Section 3(a)(vi)(5) hereof, use their reasonable best efforts to prepare and file with the SEC a
supplement or post-effective amendment to such Shelf Registration Statement or the related
Prospectus or any Free Writing Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered (or, to the extent permitted by law,
made available) to purchasers of the Registrable Securities, such Prospectus or Free Writing
Prospectus, as the case may be, will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and the Issuers and the Guarantors shall notify the
Holders of Registrable Securities to suspend use of the Prospectus or any Free Writing Prospectus
as promptly as practicable after the occurrence of such an event, and such Holders hereby agree to
suspend use of the Prospectus or any Free Writing Prospectus, as the case may be, until the Issuers
and the Guarantors have amended or supplemented the Prospectus or the Free Writing Prospectus, as
the case may be, to correct such misstatement or omission;
(xi) a reasonable time prior to the filing of any Registration Statement, any Prospectus, any
Free Writing Prospectus, any amendment to a Registration Statement or amendment or supplement to a
Prospectus or a Free Writing Prospectus or of any document that is to be incorporated by reference
into a Registration Statement, a Prospectus or a Free Writing Prospectus after initial filing of a
Registration Statement, provide copies of such document to the Initial Purchasers (which shall be
deemed delivered upon delivery thereof to their counsel) (and, in the case of a Shelf Registration
Statement, to the Holders of Registrable Securities or their counsel) and make such of the
representatives of the Issuers and the Guarantors as shall be reasonably requested by the Initial
Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the Holders of
Registrable Securities or their counsel) available for discussion of such document; and the Issuers
and the Guarantors shall not, at any time after initial filing of a Registration Statement, use or
file any Prospectus, any Free Writing Prospectus, any amendment of or supplement to a Registration
Statement or a Prospectus or a Free Writing Prospectus, or any document that is to be incorporated
by reference into a Registration Statement, a Prospectus or a Free Writing Prospectus, of which the
Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, the
Holders of Registrable Securities and their counsel) shall not have previously been advised and
furnished a copy or to which the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Holders of Registrable Securities or their counsel) shall reasonably
object;
(xii) obtain a CUSIP number for all Exchange Securities or Registrable Securities, as the case
may be, not later than the initial effective date of a Registration Statement;
(xiii) cause the Indenture to be qualified under the Trust Indenture Act in connection with
the registration of the Exchange Securities or Registrable Securities, as the case may be;
cooperate with the Trustee and the Holders to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the terms of the Trust Indenture
Act; and execute, and use their reasonable best efforts to cause the Trustee to execute, all
documents as may be required to effect such changes and all
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other forms and documents required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(xiv) in the case of a Shelf Registration, make available for inspection by a representative
of the Holders of the Registrable Securities (an “Inspector”), any Underwriter participating in any
disposition pursuant to such Shelf Registration Statement, any attorneys and accountants designated
by a majority of the Holders of Registrable Securities to be included in such Shelf Registration
and any attorneys and accountants designated by such Underwriter, at reasonable times and in a
reasonable manner, all pertinent financial and other records, documents and properties of the
Issuers and its subsidiaries, and cause the respective officers, directors and employees of the
Issuers and the Guarantors to supply all information reasonably requested by any such Inspector,
Underwriter, attorney or accountant in connection with a Shelf Registration Statement; (all of
which, the “Records”). Notwithstanding the foregoing, Records which the Issuers and the Guarantors
determine, in good faith, to be confidential and any Records which they notify the Inspectors are
confidential shall not be disclosed by the Inspectors unless (1) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in such Registration Statement, (2) the
release of such Records is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction, (3) the information in such Records has been made generally available to the public
other than as a result of a disclosure or failure to safeguard by such Inspector or (4) disclosure
of such information is, in the reasonable opinion of counsel for any Inspector, necessary in
connection with any action, claim, suit or proceeding, directly or indirectly, involving or
potentially involving such Inspector and arising out of, based upon, related to, or involving this
Agreement, or any transactions contemplated hereby or arising hereunder. Each selling Holder of
such Registrable Securities and each Underwriter or other Person will be required to agree that
information obtained by it as a result of such inspections shall be deemed confidential and shall
not be used by it as the basis for any market transactions in the securities of the Issuers and the
Guarantors unless and until such is made generally available to the public. Each selling Holder of
such Registrable Securities and each such Underwriter or other Person will be required to further
agree that it will, to the extent permitted by law, upon learning that disclosure of such Records
is sought in a court of competent jurisdiction, give notice to the Issuers and the Guarantors and
allow the Issuers and the Guarantors to undertake appropriate action to prevent disclosure of the
Records deemed confidential at their expense.
(xv) in the case of a Shelf Registration, use their reasonable best efforts to cause all
Registrable Securities to be listed on any securities exchange or any automated quotation system on
which similar securities issued or guaranteed by the Issuers or any Guarantor are then listed if
requested by the Majority Holders, to the extent such Registrable Securities satisfy applicable
listing requirements;
(xvi) if reasonably requested by any Holder of Registrable Securities covered by a Shelf
Registration Statement, promptly include in a Prospectus supplement or post-effective amendment
such information with respect to such Holder as such Holder reasonably requests to be included
therein and make all required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after the Issuers have received notification of the matters to be
so included in such filing; provided, however, that once the Shelf Registration Statement has been
declared effective, the Issuers and the Guarantors will not be required to so supplement or amend
the Shelf Registration Statement or Prospectus more than once every ninety (90) days;
(xvii) in the case of a Shelf Registration, enter into such customary agreements and take all
such other customary actions in connection therewith (including those that are reasonably requested
by the Holders of a majority in principal amount of the Registrable Securities covered by the Shelf
Registration Statement), in order to expedite or facilitate the disposition of such Registrable
Securities including, but not limited to, an Underwritten Offering and in such connection, (1) to
the extent practicable, make such representations and warranties to the Holders and any
Underwriters of such Registrable Securities with respect to the business of the Issuers and its
subsidiaries and the Registration Statement, Prospectus, any Free
10
Writing Prospectus and documents incorporated by reference or deemed incorporated by reference, if
any, in each case, in form, substance and scope as are customarily made by issuers to underwriters
in underwritten offerings and confirm the same if and when requested, (2) obtain opinions of
counsel to the Issuers and the Guarantors (which counsel (which may be Xxxxxxx, Xxxxxxxxx LLP) and
opinions, in form, scope and substance, shall be reasonably satisfactory to the Holders and such
Underwriters and their respective counsel) addressed to each selling Holder and Underwriter of
Registrable Securities, covering the matters customarily covered in opinions requested in
underwritten offerings, (3) obtain “comfort” letters from the independent certified public
accountants of the Issuers and the Guarantors (and, if necessary, any other certified public
accountant of any subsidiary of the Issuers or any Guarantor, or of any business acquired by the
Issuers or any Guarantor for which financial statements and financial data are or are required to
be included in the Registration Statement) addressed to each selling Holder (to the extent
permitted by applicable professional standards) and Underwriter of Registrable Securities, such
letters to be in customary form and covering matters of the type customarily covered in “comfort”
letters in connection with underwritten offerings, including but not limited to financial
information contained in any preliminary prospectus, Prospectus or Free Writing Prospectus and (4)
deliver such documents and certificates as may be reasonably requested by the Holders of a majority
in principal amount of the Registrable Securities being sold or the Underwriters, and which are
customarily delivered in underwritten offerings, to evidence the continued validity of the
representations and warranties of the Issuers and the Guarantors made pursuant to clause (1) above
and to evidence compliance with any customary conditions contained in an underwriting agreement;
and
(xviii) so long as any Registrable Securities remain outstanding, cause each Additional
Guarantor upon the creation or acquisition by the Issuers of such Additional Guarantor, to execute
a counterpart to this Agreement in the form attached hereto as Annex A and to deliver such
counterpart, together with an opinion of counsel as to the enforceability thereof against such
entity, to the Initial Purchasers no later than five Business Days following the execution thereof.
(b) In the case of a Shelf Registration Statement, the Issuers may require each Holder of
Registrable Securities to furnish to the Issuers such information regarding such Holder and the
proposed disposition by such Holder of such Registrable Securities as the Issuers and the
Guarantors may from time to time reasonably request in writing; provided the Issuers and the
Guarantors may require Holders to furnish such information within a reasonable time after receiving
such request, and any Holders (“Excluded Holders”) that fail to respond within such time may be
excluded from any such Shelf Registration Statement, provided, further, the Issuers and the
Guarantors shall promptly amend such Shelf Registration Statement to include such Excluded Holders
after receiving the required information from such Excluded Holders (but subject to the proviso set
forth in Section 3(a)(xvi)).
(c) In the case of a Shelf Registration Statement, each Holder of Registrable Securities
covered in such Shelf Registration Statement agrees that, upon receipt of any notice from the
Issuers and the Guarantors of the happening of any event of the kind described in Section
3(a)(vi)(3) or 3(a)(vi)(5) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the Shelf Registration Statement until such Holder’s receipt of
the copies of the supplemented or amended Prospectus and any Free Writing Prospectus contemplated
by Section 3(a)(x) hereof and, if so directed by the Issuers and the Guarantors, such Holder will
deliver to the Issuers and the Guarantors all copies in its possession, other than permanent file
copies then in such Holder’s possession, of the Prospectus and any Free Writing Prospectus covering
such Registrable Securities that is current at the time of receipt of such notice.
(d) If the Issuers and the Guarantors shall give any notice to suspend the disposition of
Registrable Securities pursuant to a Registration Statement, the Issuers and the Guarantors shall
extend the period during which such Registration Statement shall be maintained effective pursuant
to this Agreement by the number of days during the period from and including the date of the giving
of such notice to
11
and including the date when the Holders of such Registrable Securities shall have received copies
of the supplemented or amended Prospectus or any Free Writing Prospectus necessary to resume such
dispositions. The Issuers and the Guarantors may give any such notice only twice during any 365-day
period and any such suspensions shall not exceed 30 days for each suspension and there shall not be
more than two suspensions in effect during any 365-day period.
(e) The Holders of Registrable Securities covered by a Shelf Registration Statement who desire
to do so may sell such Registrable Securities in an Underwritten Offering. In any such Underwritten
Offering, the investment bank or investment banks and manager or managers (each an “Underwriter”)
that will administer the offering will be selected by the Holders of a majority in principal amount
of the Registrable Securities included in such offering.
(a) The Staff has taken the position that any broker-dealer that receives Exchange Securities
for its own account in the Exchange Offer in exchange for Securities that were acquired by such
broker-dealer as a result of market-making or other trading activities (a “Participating
Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and
must deliver a prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Securities.
The Issuers and the Guarantors understand that it is the Staffs position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution
containing a statement to the effect set forth in the first paragraph of Section 4(a) above and the
means by which Participating Broker-Dealers may resell the Exchange Securities, without naming the
Participating Broker-Dealers or specifying the amount of Exchange Securities owned by them, such
Prospectus may be delivered by Participating BrokerDealers (or, to the extent permitted by law,
made available to purchasers) to satisfy their prospectus delivery obligation under the Securities
Act in connection with resales of Exchange Securities for their own accounts, so long as the
Prospectus otherwise meets the requirements of the Securities Act.
(b) In light of the above, and notwithstanding the other provisions of this Agreement, the
Issuers and the Guarantors agree to amend or supplement the Prospectus contained in the Exchange
Offer Registration Statement for a period of up to 180 days after the last Exchange Date (as such
period may be extended pursuant to Section 3(d) of this Agreement), as may be required under the
Securities Act in order to expedite or facilitate the disposition of any Exchange Securities by
Participating Broker-Dealers consistent with the positions of the Staff recited in Section 4(a)
above. The Issuers and the Guarantors further agree that Participating Broker-Dealers shall be
authorized to deliver such Prospectus (or, to the extent permitted by law, make available) during
such period in connection with the resales contemplated by this Section 4.
(c) The Initial Purchasers shall have no liability to the Issuers, any Guarantor or any Holder
with respect to any request that the Initial Purchasers, as Participating Broker-Dealers, may make
pursuant to Section 4(b) above.
(a) Each Issuer and each Guarantor, jointly and severally, agree to indemnify and hold
harmless each Initial Purchaser and each Holder, their respective affiliates, directors and
officers and each Person, if any, who controls any Initial Purchaser or any Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against
any and all losses, claims, damages and liabilities (including, without limitation, legal fees
and other expenses incurred in connection with any
12
suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or
several, that arise out of, or are based upon, (1) any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or (2) any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus, any Free Writing Prospectus or any “issuer information”
(“Issuer Information”) filed or required to be filed pursuant to Rule 433(d) under the Securities
Act, or any omission or alleged omission to state therein a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
misleading, in each case except insofar as such losses, claims, damages or liabilities arise out
of, or are based upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to any Initial Purchaser, or
information relating to any Holder furnished to the Issuers in writing through JPMorgan, or any
selling Holder, respectively, expressly for use therein. In connection with any Underwritten
Offering permitted by Section 3, the Issuers and the
Guarantors, jointly and severally, will also indemnify the Underwriters, if any, selling brokers,
dealers and similar securities industry professionals participating in the distribution, their
respective affiliates and each Person who controls such Persons (within the meaning of the
Securities Act and the Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any Registration Statement, any
Prospectus, any Free Writing Prospectus or any Issuer Information.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Issuers,
the Guarantors, the Initial Purchasers and the other selling Holders, the directors of the Issuers
and the Guarantors, each officer of the Issuers and the Guarantors who signed the Registration
Statement and each Person, if any, who controls the Issuers, the Guarantors, any Initial Purchaser
and any other selling Holder within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only
with respect to any losses, claims, damages or liabilities that arise out of, or are based upon,
any untrue statement or omission or alleged untrue statement or omission made in reliance upon and
in conformity with any information relating to such Holder furnished to the Issuers in writing by
such Holder expressly for use in any Registration Statement, any Prospectus and any Free Writing
Prospectus.
(c) If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any Person in respect of which indemnification
may be sought pursuant to either paragraph (a) or (b) above, such Person (the “Indemnified Person”)
shall promptly notify the Person against whom such indemnification may be sought (the “Indemnifying
Person”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve
it from any liability that it may have under this Section 5 except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure;
and provided, further, that the failure to notify the Indemnifying Person shall not relieve it from
any liability that it may have to an Indemnified Person otherwise than under this Section 5. If any
such proceeding shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 5 that the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any
Indemnified Person shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it that are different
from or in addition to those available to
13
the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall not, in connection
with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm (x) for any Initial
Purchaser, its affiliates, directors and officers and any control Persons of such Initial Purchaser
shall be designated in writing by JPMorgan, (y) for any Holder, its directors and officers and any
control Persons of such Holder shall be designated in writing by the Majority Holders and (z) in
all other cases shall be designated in writing by the Issuers. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written consent, but if settled
with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees
to indemnify each Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable
for any settlement of any proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii)
the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party and indemnification could
have been sought hereunder by such Indemnified Person, unless such settlement (A) includes an
unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject matter of such
proceeding and (B) does not include any statement as to or any admission of fault, culpability or a
failure to act by or on behalf of any Indemnified Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an
Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying
such Indemnified Person thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Issuers and the
Guarantors from the offering of the Securities and the Exchange Securities, on the one hand, and by
the Holders from receiving Securities or Exchange Securities registered under the Securities Act,
on the other hand, or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) but also the relative fault of the Issuers and the Guarantors on the one hand and the
Holders on the other in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable considerations. The
relative fault of the Issuers and the Guarantors on the one hand and the Holders on the other shall
be determined by reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact relates to
information supplied by the Issuers and the Guarantors or by the Holders and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission.
(e) The Issuers, the Guarantors and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 5 were determined by pro rata allocation (even if the
Holders were treated as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an
Indemnified Person as a result of the losses, claims, damages and liabilities referred to in
paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such
14
Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of
this Section 5, in no event shall a Holder be required to contribute any amount in excess of the
amount by which the total price at which the Securities or Exchange Securities sold by such Holder
exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
The Holders’ obligations to contribute pursuant to this Section 5 are several and not joint.
(f) The remedies provided for in this Section 5 are not exclusive and shall not limit any
rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 5 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of the Initial Purchasers or any Holder or any Person
controlling any Initial Purchaser or any Holder, or by or on behalf of the Issuers or the
Guarantors or the officers or directors of or any Person controlling the Issuers or the Guarantors,
(iii) acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities
pursuant to a Shelf Registration Statement.
6. General.
(a) No Inconsistent Agreements. The Issuers and the Guarantors represent, warrant and agree
that (i) the rights granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of any other outstanding securities issued or
guaranteed by the Issuers or any Guarantor under any other agreement and (ii) neither the Issuers
nor any Guarantor has entered into, or on or after the date of this Agreement will enter into, any
agreement that is inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including the provisions of this
sentence, may not be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given unless the Issuers and the Guarantors have obtained the
written consent of Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement, waiver or consent;
provided that no amendment, modification, supplement, waiver or consent to any departure from the
provisions of Section 5 hereof shall be effective as against any Holder of Registrable Securities
unless consented to in writing by such Holder. Any amendments, modifications, supplements, waivers
or consents pursuant to this Section 6(b) shall be by a writing executed by each of the parties
hereto.
(c) Notices. All notices and other communications provided for or permitted hereunder shall be
made in writing by hand-delivery, registered firstclass mail, telex, telecopier, or any courier
guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such
Holder to the Issuers by means of a notice given in accordance with the provisions of this Section
6(c), which address initially is, with respect to the Initial Purchasers, the address set forth in
the Purchase Agreement; (ii) if to the Issuers and the Guarantors, initially at the Issuers’
address set forth in the Purchase Agreement and thereafter at such other address, notice of which
is given in accordance with the provisions of this Section 6(c); and (iii) to such other persons at
their respective addresses as provided in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this Section 6(c). All such
notices and communications shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt is acknowledged, if telecopied; and on the
next Business Day if timely delivered to an air courier guaranteeing overnight delivery. Copies of
all such notices, demands or other
15
communications shall be concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors, assigns and transferees of each of the parties, including, without limitation and
without the need for an express assignment, subsequent Holders; provided that nothing herein shall
be deemed to permit any assignment, transfer or other disposition of Registrable Securities in
violation of the terms of the Purchase Agreement or the Indenture. If any transferee of any Holder
shall acquire Registrable Securities in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all the terms of this Agreement, and by taking and
holding such Registrable Securities such Person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement and such Person shall be
entitled to receive the benefits hereof. The Initial Purchasers (in their capacity as Initial
Purchasers) shall have no liability or obligation to the Issuers or the Guarantors with respect to
any failure by a Holder to comply with, or any breach by any Holder of, any of the obligations of
such Holder under this Agreement.
(e) Third Party Beneficiaries. Each Holder shall be a third party beneficiary to the
agreements made hereunder between the Issuers 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 it deems such enforcement necessary or advisable to protect its rights or the rights of
other Holders hereunder.
(f) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of reference only, are not a
part of this Agreement and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(i) Entire Agreement; Severability. This Agreement contains the entire agreement between the
parties relating to the subject matter hereof and supersedes all oral statements and prior writings
with respect thereto. If any term, provision, covenant or restriction contained in this Agreement
is held by a court of competent jurisdiction to be invalid, void or unenforceable or against public
policy, the remainder of the terms, provisions, covenants and restrictions contained herein shall
remain in full force and effect and shall in no way be affected, impaired or invalidated. The
Issuers, the Guarantors and the Initial Purchasers shall endeavor in good faith negotiations to
replace the invalid, void or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, void or unenforceable provisions.
16
| COLT DEFENSE LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Name: | LT GEN Xx X. Xxxx, USMC (Ret.) | |||
| Title: | President and Chief Executive Officer | |||
| COLT FINANCE CORP. |
||||
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Name: | LT GEN Xx X. Xxxx, USMC (Ret.) | |||
| Title: | President and Chief Executive Officer | |||
| COLT RAPID MAT LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Name: | LT GEN Xx X. Xxxx, USMC (Ret.) | |||
| Title: | President and Chief Executive Officer | |||
S-1
Confirmed and accepted as of the date first above written:
| X.X. XXXXXX SECURITIES INC. | ||||
| For itself and on behalf of the several Initial Purchasers | ||||
By |
/s/ Xxxxx Xxxxxx | |||
S-2
Annex A
Counterpart to Registration Rights Agreement
The undersigned hereby absolutely, unconditionally and irrevocably agrees as a Guarantor (as
defined in the Registration Rights Agreement, dated as of November 10, 2009 by and among the
Issuers, the guarantors party thereto and X.X. Xxxxxx Securities Inc., on behalf of itself and the
other Initial Purchasers) to be bound by the terms and provisions of such Registration Rights
Agreement.
| [NAME] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Schedule 1
[list of guarantors]
Colt Rapid Mat LLC