Exhibit 10.2
EXECUTION COPY
$400,000,000
XXXX CORPORATION
5-3/4% SENIOR NOTES DUE 2014
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement") is made and entered into
as of August 3, 2004, among Xxxx Corporation, a Delaware corporation (the
"Company"), the Guarantors listed on Schedule B hereto (each a "Guarantor" and
together, the "Guarantors"), and X.X. Xxxxxx Securities Inc., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Banc of America Securities LLC, Deutsche
Bank Securities Inc., ABN AMRO Incorporated, BNP Paribas Securities Corp.,
Calyon Securities (USA) Inc., Mizuho International plc, Scotia Capital (USA)
Inc., SunTrust Capital Markets, Inc., and Wachovia Capital Markets, LLC, as
initial purchasers pursuant to the Purchase Agreement (as defined below) (the
"Initial Purchasers").
This Agreement is made pursuant to the purchase agreement dated July 29,
2004, among the Company, the Guarantors and the Initial Purchasers (the
"Purchase Agreement"), which provides for the sale by the Company to the Initial
Purchasers of $400,000,000 aggregate principal amount of the Company's 5-3/4%
Senior Notes due 2014 (the "Notes") to be guaranteed on a joint and several
basis by the Guarantors. The Notes and the guarantees of the Guarantors (the
"Guarantees" and, together with the Notes, the "Securities") are to be issued
pursuant to the provisions of an Indenture dated as of August 3, 2004 (the
"Indenture") among the Company, the Guarantors and BNY Midwest Trust Company, as
trustee (the "Trustee"). In order to induce the Initial Purchasers to enter into
the Purchase Agreement, the Company and the Guarantors have agreed to provide to
the Initial Purchasers and their direct and indirect permitted transferees the
registration rights set forth in this Agreement. The execution 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 capitalized
defined terms shall have the following meanings:
"CLOSING DATE" shall mean the Closing Date as defined in the Purchase
Agreement.
"COMMISSION" shall mean the Securities and Exchange Commission.
"COMPANY" shall have the meaning set forth in the preamble and shall also
include the Company's successors.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"EXCHANGE OFFER" shall mean the exchange offer by the Company 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) and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
2
"EXCHANGE SECURITIES" shall mean securities issued by the Company and the
Guarantors under the Indenture containing terms identical to the
Securities (except that the Exchange Securities will not contain
restrictions on transfer nor shall additional interest accrue with respect
to such securities) and to be offered to Holders of Securities in exchange
for Securities pursuant to the Exchange Offer.
"GUARANTORS" shall have the meaning set forth in the preamble and shall
also include each Guarantor's successors.
"HOLDER" shall mean the Initial Purchasers, for so long as they own any
Registrable Securities, and each of their successors, assigns and direct
and indirect permitted transferees who become registered owners of
Registrable Securities under the Indenture; provided that for purposes of
Sections 4 and 5 of this Agreement, the term "Holder" shall include
Participating Broker-Dealers (as defined in Section 4(a)).
"INDENTURE" shall have the meaning set forth in the preamble and shall
include the Indenture 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.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the aggregate
principal amount of outstanding Registrable Securities.
"PERSON" shall mean an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus
as amended or supplemented by any prospectus supplement, including a
prospectus supplement with 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 all material incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble.
"REGISTRABLE SECURITIES" shall mean the Securities; provided, however,
that any Securities shall cease to be Registrable Securities when:
(i) such Securities have been exchanged for Exchange Securities in
the Exchange Offer;
(ii) a Registration Statement with respect to such Securities shall
have been declared effective under the Securities Act and such Securities
shall have been disposed of pursuant to such Registration Statement;
(iii) such Securities have been distributed to the public pursuant
to Rule 144 under the Securities Act (or any similar provision then in
force) or are eligible for sale without restriction pursuant to Rule
144(k) (or any similar provision then in force, but not Rule 144A) under
the Securities Act; or
(iv) such Securities shall have ceased to be outstanding.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Company and the Guarantors with this
Agreement, including without limitation:
3
(i) all Commission, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees;
(ii) all fees and expenses incurred in connection with compliance
with state securities or Blue Sky laws (including reasonable fees and
disbursements of counsel to any underwriters or Holders in connection with
Blue Sky qualification of any of the Exchange Securities or Registrable
Securities, if required pursuant to this Agreement);
(iii) all expenses of any Persons engaged by the Company or the
Guarantors in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements, securities
sales agreements and other documents relating to the performance of and
compliance with this Agreement;
(iv) all rating agency fees;
(v) all fees and disbursements relating to the qualification of the
Indenture under applicable securities laws;
(vi) the reasonable fees and disbursements of the Trustee and its
counsel;
(vii) the fees and disbursements of counsel to the Company and the
Guarantors and, in the case of a Shelf Registration Statement, the
reasonable fees and disbursements of one counsel to the Holders (which
counsel shall be selected by the Majority Holders and which counsel may
also be counsel to the Initial Purchasers); and
(viii) the fees and disbursements of the independent public
accountants engaged by the Company and the Guarantors, including the
expenses of any special audits or "cold comfort" letters required by or
incident to such performance and compliance, but excluding fees and
expenses of counsel to the underwriters (other than fees and expenses set
forth in clause (ii) above) or the Holders and underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company 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, all exhibits thereto and all material incorporated by
reference therein.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended from
time to time.
"SHELF REGISTRATION" shall mean a Registration effected pursuant to
Section 2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration statement
of the Company and the Guarantors pursuant to the provisions of Section
2(b) of this Agreement which covers all of the Registrable Securities (but
no other securities unless approved by the Holders whose Registrable
Securities are 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 Commission, and all amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"TRUSTEE" shall mean the trustee with respect to the Securities under the
Indenture.
4
"UNDERWRITER" shall have the meaning set forth in Section 3 hereof.
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING" shall mean a
registration in which Registrable Securities are sold to an Underwriter
for reoffering to the public.
2. Registration Under the Securities Act. (a) To the extent not prohibited
by any applicable law or applicable interpretation of the Staff of the
Commission, the Company and the Guarantors shall use their reasonable best
efforts to cause to be filed an Exchange Offer Registration Statement covering
the offer by the Company and the Guarantors to the Holders to exchange all of
the Registrable Securities for Exchange Securities, to have the Exchange Offer
Registration Statement declared effective within 285 days of the Closing Date
and to have such Registration Statement remain effective until the closing of
the Exchange Offer. The Company and the Guarantors shall commence the Exchange
Offer promptly after the Exchange Offer Registration Statement has been declared
effective by the Commission and use their reasonable best efforts to consummate
the Exchange Offer within 30 business days of the effective date of the Exchange
Offer Registration Statement. The Company and the Guarantors shall commence the
Exchange Offer by mailing the related Exchange Offer Prospectus and accompanying
documents to each Holder stating, in addition to such other disclosures as are
required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Registration Rights Agreement and that all Registrable Securities validly
tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period
of at least 20 business days from the date such notice is mailed) (the
"Exchange Dates");
(iii) that any Registrable Security not tendered will remain
outstanding and continue to accrue interest, but will not retain any
rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Security, together with the enclosed letters of transmittal,
to the institution and at the address (located in the Borough of
Manhattan, The City of New York) specified in the notice prior to the
close of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not
later than the close of business on the last Exchange Date, by sending to
the institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Registrable Securities delivered for exchange and a
statement that such Holder is withdrawing his election to have such
Securities exchanged.
As soon as practicable after the last Exchange Date, the Company and the
Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof
tendered and not validly 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 Company and the Guarantors and issue, and cause the
Trustee to promptly authenticate and mail to each Holder, an Exchange
Security equal in principal amount to the principal amount of the
Registrable Securities surrendered by such Holder.
The Company 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 applicable law or any applicable interpretation
of
5
the Staff of the Commission. The Company shall inform the Initial Purchasers of
the names and addresses of the Holders to whom the Exchange Offer is made, and
the Initial Purchasers shall have the right, subject to applicable law, to
contact such Holders and otherwise facilitate the number of Registrable
Securities in the Exchange Offer.
For a period of 90 days after the last Exchange Date, the Company and the
Guarantors shall also use their reasonable best efforts to make available a
prospectus meeting the requirements of the Securities Act which may be the
Prospectus contained in the Exchange Offer Registration Statement or the
Prospectus contained in a Shelf Registration Statement, as such Registration
Statements may be amended or supplemented from time to time, to Holders which
are broker-dealers (and which identify themselves as such) in connection with
resales of Exchange Securities received in exchange for Registrable Securities,
where such Registrable Securities were acquired by such broker-dealers for their
own account as a result of market-making or other trading activities; provided
that each Holder which is a broker-dealer agrees that, upon receipt of notice
from the Company of the occurrence of any event which makes any statement in the
Prospectus untrue in any material respect or which requires the making of any
changes in the Prospectus in order to make the statements therein not misleading
(which notice the Company agrees to deliver promptly to such broker-dealer),
such broker-dealer will suspend use of the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or omission
and has furnished copies of the amended or supplemented Prospectus to such
broker-dealer. If the Company shall give any such notice to suspend the use of
the Prospectus, it shall extend the 90-day period referred to above by the
number of days during the period from and including the date of the giving of
such notice to and including the date when broker-dealers shall have received
copies of the supplemented or amended Prospectus necessary to permit resales of
the Exchange Securities.
In the event that, at the last Exchange Date, any of the Initial
Purchasers shall not have sold all of the Registrable Securities initially
purchased from the Company and the Guarantors by such Initial Purchaser to
unaffiliated investors, upon such Initial Purchaser's written request (made
within 10 days after the last Exchange Date), the Company and the Guarantors
will use their reasonable best efforts to file promptly, or if so requested by
any Initial Purchaser, on a later date (which date shall not exceed the date
that is six months after the Exchange Date), a Shelf Registration Statement or a
post-effective amendment to the Exchange Offer Registration Statement, if
acceptable to the Commission, to register all such Registrable Securities for
all such Initial Purchasers. The Company and the Guarantors will keep such Shelf
Registration Statement or other Registration Statement effective and make
available to such Initial Purchasers a Prospectus meeting the requirements of
the Securities Act for a period of 120 days, provided that each such Initial
Purchaser agrees that, upon receipt of notice from the Company of the happening
of any event which makes any statement in the Prospectus untrue in any material
respect or which requires the making of any changes in the Prospectus in order
to make the statements therein not materially misleading (which notice the
Company agrees to deliver promptly to such Initial Purchasers), such Initial
Purchaser will suspend use of the Prospectus until the Company has amended or
supplemented the Prospectus to correct such misstatement or omission and has
furnished copies of the amended or supplemented Prospectus to such Initial
Purchaser. If the Company shall give any such notice to suspend the use of the
Prospectus, it shall extend the 120-day period referred to above by the number
of days during the period from and including the date of the giving of such
notice to and including the date when such Initial Purchasers shall have
received copies of the supplemented or amended Prospectus necessary to permit
sales of their Securities.
(b) In the event that:
(i) the Company determines that the Exchange Offer Registration
provided for in Section 2(a) above is not available or may not be
consummated as soon as practicable after the last Exchange Date because it
would violate applicable law or the applicable interpretations of the
Staff of the Commission;
(ii) the Exchange Offer is not for any other reason consummated
within 30 business days of the 285th day after the Closing Date; or
6
(iii) the Exchange Offer has been completed, a Holder was not
permitted to participate in the Exchange Offer or did not receive freely
transferable Exchange Securities pursuant to the Exchange Offer and in the
written opinion of counsel to the Initial Purchasers (a copy of which is
furnished to the Company) a Registration Statement must be filed and a
Prospectus must be delivered by the Initial Purchasers in connection with
any offering or sale of Registrable Securities,
the Company and the Guarantors shall use their reasonable best efforts to cause
to be filed as soon as practicable after such determination, date or notice of
such opinion of counsel is given to the Company and the Guarantors, as the case
may be, a Shelf Registration Statement providing for the sale by the Holders of
all of the Registrable Securities and to have such Shelf Registration Statement
declared effective by the Commission. In the event the Company and the
Guarantors are required to file a Shelf Registration Statement solely as a
result of the matters referred to in clause (iii) of the preceding sentence, the
Company and the Guarantors shall use their reasonable best efforts to file and
have declared effective by the Commission both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Registrable Securities
eligible to be included therein and a Shelf Registration Statement (which may be
a combined Registration Statement with the Exchange Offer Registration
Statement) with respect to offers and sales of Registrable Securities held by
the Initial Purchasers after completion of the Exchange Offer. The Company and
the Guarantors agree to use their reasonable best efforts to keep the Shelf
Registration Statement continuously effective until the Securities covered
thereby cease to be Registrable Securities. The Company and the Guarantors
further agree to supplement or amend the Shelf Registration Statement if
required by the rules, regulations or instructions applicable to the
registration form used by the Company and the Guarantors for such Shelf
Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registration or if reasonably requested by a
Holder with respect to information relating to such Holder, and to use its
reasonable best efforts to cause any such amendment to become effective and such
Shelf Registration Statement to become usable as soon as thereafter practicable.
The Company agrees to furnish to the Holders of Registrable Securities copies of
any such supplement or amendment promptly after its being used or filed with the
Commission.
(c) The Company and the Guarantors shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) and Section 2(b). Each
Holder shall pay all underwriting discounts and 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 or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the Commission; provided, however, that, if, after it has been declared
effective, the offering of Registrable Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or other
order or requirement of the Commission or any other governmental agency or
court, such Registration Statement will be deemed not to have become effective
during the period of such interference until the offering of Registrable
Securities pursuant to such Registration Statement may legally resume.
If the Company or the Guarantors fail to comply with the above provisions,
additional interest (the "Additional Interest") shall be assessed as follows:
(i) If an Exchange Offer Registration Statement or Shelf
Registration Statement is not declared effective within 285 days following
the Closing Date, then commencing on the 286th day after the Closing Date,
Additional Interest shall be accrued on the Registrable Securities
affected thereby over and above the accrued interest at a rate of 0.25%
per annum; or
(ii) If either (A) the Company and the Guarantors have not exchanged
Exchange Securities for all Securities validly tendered in accordance with
the terms of the Exchange Offer on or prior to 30 business days after the
date on which the Exchange Offer Registration Statement was declared
effective, or
7
(B) if applicable, the Shelf Registration Statement has been declared
effective but such Shelf Registration Statement ceases to be effective at
any time prior to the expiration of the period referred to in Rule 144(k),
then Additional Interest shall be accrued on the Registrable Securities
affected thereby over and above the accrued interest at a rate of 0.25%
per annum immediately following the (x) 31st business day after such
effective date, in the case of (A) above, or (y) the day such Shelf
Registration Statement ceases to be effective in the case of (B) above:
provided, however, that the Additional Interest rate on the Registrable
Securities may in no event exceed 0.25% per annum; and, provided, further, that
Additional Interest on the Registrable Securities as a result of such clause (i)
or (ii) shall cease to accrue upon:
(1) the effectiveness of the Exchange Offer Registration Statement
or Shelf Registration Statement (in the case of (i) above); or
(2) the exchange of Exchange Securities for all Securities tendered
or upon the effectiveness of the Shelf Registration Statement which had
ceased to remain effective prior to the expiration of the period referred
to in Rule 144(k) (in the case of (ii) above).
Any amounts of Additional Interest due pursuant to clauses (i) or (ii)
above will be payable in cash, on the same original payment dates of the
Securities. The amount of Additional Interest will be determined by multiplying
the applicable Additional Interest rate by the principal amount of the
Registrable Securities, multiplied by a fraction, the numerator of which is the
number of days such Additional Interest rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve 30-day months),
and the denominator of which is 360.
Additional Interest shall not apply in the event that a Shelf Registration
Statement is required to be filed solely as a result of the matters referred to
in clause (iii) of Section 2(b) and shall not apply to Securities that cease to
be Registrable Securities.
(e) The accrual and payment of Additional Interest, as set forth in
Section 2(d), shall be the sole and exclusive remedy of the Holders and the
Initial Purchasers against the Company and the Guarantors for the breach by the
Company or the Guarantors of any of their obligations under Section 2.
3. Registration Procedures. In connection with the obligations of the
Company and the Guarantors with respect to the Registration Statements pursuant
to Section 2(a) and Section 2(b) hereof, the Company and the Guarantors shall:
(a) prepare and file with the Commission a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected by
the Company and the Guarantors, (y) shall, in the case of a Shelf Registration,
be available for the sale of the Registrable Securities by the selling Holders
thereof and (z) shall comply as to form in all material respects with the
requirements of the applicable form and include (or incorporate by reference)
all financial statements required by the Commission to be filed therewith, and
use is reasonable best efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the Commission such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement effective for the applicable period 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
to use their respective best efforts keep each Prospectus current during the
period described under Section 4(3) 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;
8
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities participating therein, to counsel to the Initial
Purchasers, to counsel to the Holders and to each Underwriter of an Underwritten
Offering of Registrable Securities, if any, without charge, as many copies of
each Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or Underwriter may
reasonably request, in order to facilitate the public sale or other disposition
of the Registrable Securities; and the Company and the Guarantors consent to the
use of such Prospectus and any amendment or supplement thereto in accordance
with applicable law by each of the selling Holders of 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
or any amendment or supplement thereto in accordance with applicable law;
(d) 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 is declared effective by the Commission, to
cooperate with such Holders in connection with any filings required to be made
with the National Association of Securities Dealers, Inc. and do any and all
other acts and things which may be reasonably necessary or advisable to enable
such Holder to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder, provided, however, that neither the
Company nor the Guarantors shall be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), (ii) file any
general consent to service of process or (iii) subject itself to taxation in any
such jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of Registrable
Securities participating therein, counsel to the Holders and counsel to the
Initial Purchasers promptly and, if requested by any such Holder or counsel,
confirm in writing:
(i) when a Registration Statement has become effective and when any
post-effective amendment thereto has been filed and becomes effective;
(ii) of any request by the Commission or any state securities
authority for amendments and supplements to a Registration Statement and
Prospectus or for additional information after the Registration Statement
has become effective;
(iii) of the issuance by the Commission or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose;
(iv) if, between the effective date of a Registration Statement and
the closing of any sale of Registrable Securities covered thereby, the
representations and warranties of the Company and the Guarantors contained
in any underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to the offering cease to be true and correct
in all material respects or if the Company or the Guarantors receive 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;
(v) of the happening of any event during the period a Shelf
Registration Statement is effective which makes any statement made in such
Registration Statement or the related Prospectus untrue in any material
respect or which requires the making of any changes in such Registration
Statement or Prospectus in order to make the statements therein not
materially misleading; and
(vi) of any determination by the Company or the Guarantors that a
post-effective amendment to a Registration Statement would be appropriate;
9
(f) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide immediate notice to each Holder of the withdrawal of
any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities participating therein, without charge, at least one
conformed copy of each Registration Statement and any post-effective amendment
thereto (without documents incorporated therein by reference or exhibits
thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling
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 in
such denominations (consistent with the provisions of the Indenture) and
registered in such names as the selling Holders may reasonably request at least
one business day prior to the closing of any sale of Registrable Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any event
contemplated by Section 3(e) hereof, use its reasonable best efforts to prepare
and file with the Commission a supplement or post-effective amendment to a
Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities, such Prospectus will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. The Company and the Guarantors agree
to notify the Holders to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and the Holders hereby agree
to suspend use of the Prospectus until the Company and the Guarantors has
amended or supplemented the Prospectus to correct such misstatement or omission;
(j) in the case of a Shelf Registration, a reasonable time prior to the
filing of any Shelf Registration Statement, any Prospectus, any amendment to a
Shelf Registration Statement or amendment or supplement to a Prospectus or any
document which is to be incorporated by reference into a Shelf Registration
Statement or a Prospectus after initial filing of a Shelf Registration
Statement, provide copies of such document to the Holders participating therein
and their counsel and make such of the representatives of the Company and the
Guarantors as shall be reasonably requested by the Holders participating therein
or their counsel available for discussion of such document, and shall not at any
time file or make any amendment to the Shelf Registration Statement, any
Prospectus or any amendment of or supplement to a Shelf Registration Statement
or a Prospectus or any document which is to be incorporated by reference into a
Shelf Registration Statement or a Prospectus, of which the Holders participating
therein and their counsel shall not have previously been advised and furnished a
copy, except for any amendment or supplement or document (a copy of which has
been previously furnished to the Holders participating therein and their
counsel) which counsel to the Company and the Guarantors shall advise the
Company and the Guarantors is required in order to comply with applicable law;
(k) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of the
applicable Registration Statement;
(l) cause the Indenture to remain qualified under the Trust Indenture Act
of 1939, as amended (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 remain so qualified in
accordance with the terms of the Trust Indenture Act and execute, and use its
reasonable best efforts to cause the Trustee to execute, all documents as may be
required to effect such changes and all other forms and documents required to be
filed with the Commission to enable the Indenture to be so qualified in a timely
manner;
10
(m) in the case of a Shelf Registration, make available for inspection by
a representative of the Holders of the Registrable Securities participating
therein, any Underwriter participating in any disposition pursuant to such Shelf
Registration Statement, and attorneys and accountants designated by the Majority
Holders, at reasonable times and in a reasonable manner, all material financial
and other records, pertinent documents and properties of the Company and the
Guarantors, and use their respective reasonable best efforts to cause the
respective officers, directors and employees of the Company and the Guarantors
to supply all information reasonably requested by any such representative,
Underwriter, attorney or accountant in connection with a Shelf Registration
Statement; provided, however, that each such party shall be required to maintain
in confidence and not to disclose to any other person any information or records
reasonably designated by the Company and the Guarantors as being confidential,
until such time as:
(i) such information becomes a matter of public record (whether by
virtue of its inclusion in such registration statement or otherwise but
excluding any matter that becomes public by virtue of the breach by any
Holder of its obligations to maintain the confidentiality of any such
information);
(ii) such person shall be required so to disclose such information
pursuant to a subpoena or order of any court or other governmental agency
or body having jurisdiction over the matter (subject to the requirements
of such order, and only after such person shall have given the Company and
the Guarantors prompt prior written notice of such requirement and the
opportunity to contest the same or seek an appropriate protective order);
or
(iii) such information is required to be set forth in such Shelf
Registration Statement or the Prospectus included therein or in an
amendment to such Shelf Registration Statement or an amendment or
supplement to such Prospectus in order that such Shelf Registration
Statement, Prospectus, amendment or supplement, as the case may be, does
not contain an untrue statement of a material fact or omit to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading;
(n) in the case of a Shelf Registration, use its reasonable best efforts
to cause all Registrable Securities to be listed on any securities exchange or
any automated quotation system on which securities issued by the Company and the
Guarantors of the same class are then listed if requested by the Majority
Holders, to the extent such Registrable Securities satisfy applicable listing
requirements;
(o) if reasonably requested by any Holder of Registrable Securities
covered by a Shelf Registration Statement, use its best efforts to:
(i) incorporate in a Prospectus supplement or post-effective
amendment such information with respect to such Holder as such Holder
reasonably requests to be included therein; and
(ii) make all required filings of such Prospectus supplement or such
post-effective amendment as soon as the Company or the Guarantors have
received notification of the matters to be incorporated in such filing;
provided that neither the Company nor any Guarantor shall be required to take
any action under this paragraph (o) that is not, in the opinion of counsel to
the Company, legally required; provided, however, that such opinion shall be in
writing and delivered to the Holder; and
(p) in the case of a Shelf Registration, enter into such customary
agreements and take all such other reasonable actions in connection therewith
(including those reasonably requested by the Holders of a majority of the
Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities including, but not limited to, an
Underwritten Offering and in such connection:
11
(i) to the extent possible, make such representations and warranties
to the Holders and any Underwriters of such Registrable Securities with
respect to the business of the Company and its subsidiaries, the Shelf
Registration Statement, Prospectus and documents incorporated by reference
or deemed incorporated by reference, if any, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in
underwritten offerings of this type and confirm the same if and when
requested;
(ii) use its reasonable best efforts to obtain opinions of counsel
to the Company and the Guarantors (which counsel and opinions, in form,
scope and substance, shall be reasonably satisfactory to the Holders and
such Underwriters and their respective counsel) addressed to each selling
Holder and Underwriter of Registrable Securities, covering the matters
customarily covered in opinions requested in underwritten offerings of
this type;
(iii) use its reasonable best efforts to obtain "cold comfort"
letters from the independent certified public accountants of the Company
and the Guarantors (and, if necessary, any other certified public
accountant of any subsidiary of the Company, or of any business acquired
by the Company or the Guarantors for which financial statements and
financial data are or are required to be included in the Shelf
Registration Statement) addressed to each selling Holder and Underwriter
of Registrable Securities, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort" letters
in connection with underwritten offerings of this type; provided that any
such accountant receives appropriate documentation as contemplated, and
only if permitted, by Statement of Auditing Standards Nos. 100 or 72; and
(iv) 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 Company and the
Guarantors made pursuant to clause (i) above and to evidence compliance
with any customary conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company and the
Guarantors may require each Holder of Registrable Securities to furnish to the
Company and the Guarantors such information regarding the Holder and the
proposed distribution by such Holder of such Registrable Securities as the
Company or the Guarantors may from time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company or the Guarantors of the happening
of any event of the kind described in Section 3(e)(v) 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 contemplated by Section 3(i) hereof, and, if
so directed by the Company or the Guarantors, such Holder will deliver to the
Company or the Guarantors (at their expense) all copies in its possession, other
than permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice and shall not use such Shelf Registration Statement or Prospectus until
amended or supplemented. If the Company or the Guarantors shall give any such
notice to suspend the disposition of Registrable Securities pursuant to a Shelf
Registration Statement, the Company and the Guarantors shall extend the period
during which the Shelf 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 and including the date when
the Holders shall have received copies of the supplemented or amended Prospectus
necessary to resume such dispositions. The Company or the Guarantors may give
any such notice only twice during any 365 day period and any such suspensions
may not exceed 30 days for each suspension and there may not be more than two
suspensions in effect during any 365 day period.
12
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 banker
or investment bankers and manager or managers (the "Underwriters") that will
administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering, subject to the consent of the
Company (which shall not be unreasonably withheld or delayed) and such Holders
shall be responsible for all underwriting commissions and discounts.
4. Participation of Broker-Dealers in Exchange Offer. (a) The Staff of the
Commission has taken the position that any broker-dealer that receives Exchange
Securities for its own account in the Exchange Offer in exchange for Securities
that were acquired by such broker-dealer as a result of market-making or other
trading activities (a "Participating Broker-Dealer"), may be deemed to be an
"underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Securities.
The Company and the Guarantors understand that it is the Staff's position
that if the Prospectus contained in the Exchange Offer Registration Statement
includes a plan of distribution containing a statement to the above effect and
the means by which Participating Broker-Dealers may resell the Exchange
Securities, without naming the Participating Broker-Dealers or specifying the
amount of Exchange Securities owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery obligation
under the Securities Act in connection with resales of Exchange Securities for
their own accounts, so long as the Prospectus otherwise meets the requirements
of the Securities Act.
5. Indemnification and Contribution.
(a) Each of the Company and the Guarantors jointly and severally agrees to
indemnify and hold harmless the Initial Purchasers, each Holder and each Person,
if any, who controls any Initial Purchaser or any Holder within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, or is
under common control with, or is controlled by, any Initial Purchaser or any
Holder, from and against all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred by the
Initial Purchaser, any Holder or any such controlling or affiliated Person in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement (or any amendment thereto) pursuant to which Exchange
Securities or Registrable Securities were registered under the Securities Act,
including all documents incorporated therein by reference, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (as amended or supplemented if the Company or the
Guarantors shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material fact
necessary to make the statements therein in light of the circumstances under
which they were made not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to the
Initial Purchasers or any Holder furnished to the Company in writing by the
Initial Purchasers or any selling Holder expressly for use therein. In
connection with any Underwritten Offering permitted by Section 3, the Company
and the Guarantors will also jointly and severally indemnify the Underwriters,
if any, selling brokers, dealers and similar securities industry professionals
participating in the distribution, their officers and directors and each Person
who controls such Persons (within the meaning of the Securities Act and the
Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any Registration
Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, the Guarantors, the Initial Purchasers and the other
selling Holders, and each of their respective directors, officers who sign the
Registration Statement and each Person, if any, who controls the Company or the
Guarantors, any Initial Purchaser and any other selling Holder within the
meaning of either Section 15 of the Securities Act or Section 20 of
13
the Exchange Act to the same extent as the foregoing indemnity from the Company
to the Initial Purchasers and the Holders, but only with reference to
information relating to such Holder furnished to the Company in writing by such
Holder expressly for use in any Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In any such proceeding, the
indemnifying party shall be entitled to participate in such proceeding and, to
the extent that it so elects, jointly with any other similarly notified
indemnifying party, to assume the defense thereof, subject to the right of the
indemnified party to retain its own counsel, be separately represented and to
direct its own defense if (i) the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and the indemnified party has
been advised by counsel that representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. In any proceeding described in clause (i) or (ii) of the preceding
sentence, the fees and expenses of counsel retained by the indemnified party
shall be the expense of the indemnifying party. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified parties in connection with any proceeding or related proceedings 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 such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such
settlement includes (i) an unconditional release of such indemnified party from
all liability on any claims that are the subject matter of such action and (ii)
does not include a statement as to or an admission of fault, culpability or
failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in paragraph (a) or paragraph (b)
of this Section 5 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities, then each indemnifying
parry under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or parties on the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company, the Guarantors and the
Holders 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, 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. The Holders' respective obligations to contribute
pursuant to this Section 5(d) are several in proportion to the respective
principal amount of Registrable Securities of any such Holder that were
registered pursuant to a Registration Statement.
(e) The Company, the Guarantors and each Holder agree that it would not be
just or equitable if contribution pursuant to this Section 5 were determined by
pro rata allocation 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 party 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 reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5, no Holder shall be required to indemnify or
contribute any amount
14
in excess of the amount by which the total price at which Registrable Securities
were 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 remedies provided for in this Section 5 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
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, any Holder or any Person controlling any Initial Purchaser or
any Holder, or by or on behalf of the Company, the Guarantors, their
officers or directors or any Person controlling the Company 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. Miscellaneous. (a) No Inconsistent Agreements. Neither the Company nor
the Guarantors have entered into, and on or after the date of this Agreement
will not enter into, any agreement which is inconsistent with the rights granted
to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of other issued and outstanding securities of the
Company or the Guarantors under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company and the 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.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class 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 Company and the Guarantors 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, and (ii) if
to the Company or the Guarantors, initially at the Company's address set forth
in the Purchase Agreement and thereafter at such other address, notice of which
is given in accordance with the provisions of this Section 6(c).
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 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
15
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. 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 of 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 Company 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) Purchases and Sales of Securities. The Company and the Guarantors
shall not, and shall use their best efforts to cause their affiliates (as
defined in Rule 405 under the Securities Act) not to, purchase and then resell
or otherwise transfer any Securities.
(f) 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 it deems
such enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterpart, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) 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.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. The Company and each of the
Guarantors hereby submits to the non-exclusive jurisdiction of the Federal and
state courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
XXXX CORPORATION
By /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Title Senior Vice President and
Chief Financial Officer
XXXX OPERATIONS CORPORATION
By /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Title Vice President
XXXX SEATING HOLDINGS CORP. #50
By /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Title Vice President and Treasurer
XXXX CORPORATION XXXX AND INTERIORS
By /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Title Vice President and
Chief Financial Officer
LEAR TECHNOLOGIES, LLC
By /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Title Senior Vice President and
Chief Financial Officer of Xxxx
Corporation, its Sole Member
17
LEAR MIDWEST AUTOMOTIVE, LIMITED
PARTNERSHIP
By /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Title Vice President and Treasurer of
Xxxx Corporation Mendon,
its General Partner
LEAR AUTOMOTIVE (XXXX) SPAIN S.L.
By /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Title By Power of Attorney
XXXX CORPORATION MEXICO, S.A. DE C.V.
By /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Title By Power of Attorney
18
The foregoing Agreement is hereby confirmed, accepted
and agreed as of the date first above written.
X.X. XXXXXX SECURITIES INC.
By Xxxxx Xxxxxx
-----------------------------------
Title Vice President
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By E. Xxxxxx XxxXxxxxx
-----------------------------------
Title
Acting on behalf of itself
and as the Representatives
of the several Initial Purchasers
