REGISTRATION RIGHTS AGREEMENT Dated as of July 27, 2005 Among GRANT PRIDECO, INC. and THE GUARANTORS NAMED HEREIN as Issuers, and BANC OF AMERICA SECURITIES LLC DEUTSCHE BANK SECURITIES INC. CITIGROUP GLOBAL MARKETS INC. CREDIT SUISSE FIRST BOSTON LLC...
EXHIBIT 4.2
Execution version
Dated as of July 27, 2005
Among
GRANT PRIDECO, INC.
and
THE GUARANTORS NAMED HEREIN
as Issuers,
and
BANC OF AMERICA SECURITIES LLC
DEUTSCHE BANK SECURITIES INC.
CITIGROUP GLOBAL MARKETS INC.
CREDIT SUISSE FIRST BOSTON LLC
X.X. XXXXXX SECURITIES INC.
NATEXIS BLEICHROEDER INC.
as Initial Purchasers
61/8% Senior Notes due 2015
61/8% Senior Notes due 2015
TABLE OF CONTENTS
| Page | ||||||
1. |
Definitions | 1 | ||||
2. |
Exchange Offer | 5 | ||||
3. |
Shelf Registration | 9 | ||||
4. |
Additional Interest | 10 | ||||
5. |
Registration Procedures | 12 | ||||
6. |
Registration Expenses | 21 | ||||
7. |
Indemnification And Contribution | 22 | ||||
8. |
Rules 144 And 144a | 26 | ||||
9. |
Underwritten Registrations | 26 | ||||
10. |
Miscellaneous | 26 | ||||
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This Registration Rights Agreement (this “Agreement”) is dated as of July 27, 2005, by and
among GRANT PRIDECO, INC., a Delaware corporation (the “Company”), the subsidiaries of the Company
that are listed on the signature page hereto (collectively, and together with an entity that in the
future executes a supplemental indenture pursuant to which such entity agrees to guarantee the
Notes (as defined herein), the “Guarantors” and, together with the Company, the “Issuers”), BANC OF
AMERICA SECURITIES LLC, DEUTSCHE BANK SECURITIES INC., CITIGROUP GLOBAL MARKETS INC., CREDIT SUISSE
FIRST BOSTON LLC, X.X. XXXXXX SECURITIES INC. and NATEXIS BLEICHROEDER INC. as the initial
purchasers (the “Initial Purchasers”).
This Agreement is entered into in connection with the Purchase Agreement by and among the
Company, the Guarantors and the Initial Purchasers, dated July 14, 2005 (the “Purchase Agreement”),
which provides for, among other things, the sale by the Company to the Initial Purchasers of
$200,000,000 aggregate principal amount of the Company’s 6⅛% Senior Notes due 2015 (the “Notes”).
The Guarantors will guarantee (the “Guarantees”) the Company’s obligations under the Notes and the
Indenture (as defined herein).
The Notes and Guarantees are collectively referenced to herein as the “Securities”. In order
to induce the Initial Purchasers to enter into the Purchase Agreement, the Issuers have agreed to
provide the registration rights set forth in this Agreement for the benefit of the Initial
Purchasers and any subsequent holder or holders of the Securities. The execution and delivery of
this Agreement is a condition to the Initial Purchasers’ obligation to purchase the Notes under the
Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the following meanings:
Additional Interest: See Section 4(a) hereof.
Advice: See the last paragraph of Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2(b) hereof.
Business Day: Any day that is not a Saturday, Sunday or a day on which banking institutions
in New York are authorized or required by law to be closed.
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Company: See the introductory paragraphs hereto.
Effectiveness Date: With respect to (i) the Exchange Offer Registration Statement, the 180th
day after the Issue Date and (ii) any Shelf Registration Statement, the 90th day after the Filing
Date with respect thereto; provided, however, that if the Effectiveness Date would otherwise fall
on a day that is not a Business Day, then the Effectiveness Date shall be the next succeeding
Business Day.
Effectiveness Period: See Section 3(a) hereof.
Event Date: See Section 4 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the rules and regulations
of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a) hereof.
Exchange Offer: See Section 2(a) hereof.
Exchange Offer Registration Statement: See Section 2(a) hereof.
Filing Date: (A) If no Registration Statement has been filed by the Issuers pursuant to this
Agreement, the 90th day after the Issue Date; and (B) in any other case (which may be applicable
notwithstanding the consummation of the Exchange Offer), the 90th day after the delivery of a Shelf
Notice as required pursuant to Section 2(c) hereof; provided, however, that if the Filing Date
would otherwise fall on a day that is not a Business Day, then the Filing Date shall be the next
succeeding Business Day.
Guarantees: See the introductory paragraphs hereto.
Guarantors: See the introductory paragraphs hereto.
Holder: Any holder of a Registrable Note or Registrable Notes.
Indenture: The Indenture, dated as of July 27, 2005, by and between the Company, the
Guarantors and Xxxxx Fargo Bank, N.A., as Trustee, pursuant to which the Notes are being issued, as
amended or supplemented from time to time in accordance with the terms thereof.
Information: See Section 5(o) hereof.
Initial Purchasers: See the introductory paragraphs hereto.
Initial Shelf Registration: See Section 3(a) hereof.
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Inspectors: See Section 5(o) hereof.
Issue Date: July 27, 2005, the date of original issuance of the Notes.
Issuers: See the introductory paragraphs hereto.
NASD: See Section 5(s) hereof.
Notes: See the introductory paragraphs hereto.
Offering Memorandum: The final offering memorandum describing the business and operations of
the Issuers dated July 14, 2005 in respect of the offering of the Notes.
Participant: See Section 7(a) hereof.
Participating Broker-Dealer: See Section 2(b) hereof.
Person: An individual, trustee, corporation, partnership, limited liability company, joint
stock company, trust, unincorporated association, union, business association, firm or other legal
entity.
Private Exchange: See Section 2(b) hereof.
Private Exchange Notes: See Section 2(b) hereof.
Prospectus: The prospectus included in any Registration Statement (including, without
limitation, any prospectus subject to completion and a prospectus that includes any information
previously omitted from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Securities Act and any term sheet filed pursuant to Rule 434
under the Securities Act), as amended or supplemented by any prospectus supplement, and all other
amendments and supplements to the Prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs hereof.
Records: See Section 5(o) hereof.
Registrable Notes: Each Note (and the related Guarantees) upon its original issuance and at
all times subsequent thereto, each Exchange Note (and the related guarantees) as to which Section
2(c)(iv) hereof is applicable upon original issuance and at all times subsequent thereto and each
Private Exchange Note (and the related guarantees) upon original issuance thereof and at all times
subsequent thereto, until, in each case, the earliest to occur of (i) a Registration Statement
(other than, with respect to any Exchange Note as to which
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Section 2(c)(iv) hereof is applicable, the Exchange Offer Registration Statement) covering such
Note, Exchange Note or Private Exchange Note (and the related guarantees) has been declared
effective by the SEC and such Note, Exchange Note or such Private Exchange Note (and the related
guarantees), as the case may be, has been disposed of in accordance with such effective
Registration Statement, (ii) such Note has been exchanged pursuant to the Exchange Offer for an
Exchange Note or Exchange Notes (and the related guarantees) that may be resold without restriction
under state and federal securities laws, (iii) such Note, Exchange Note or Private Exchange Note
(and the related guarantees), as the case may be, ceases to be outstanding for purposes of the
Indenture or (iv) such Note, Exchange Note or Private Exchange Note (and the related guarantees),
as the case may be, may be resold without restriction pursuant to Rule 144(k) (as amended or
replaced) under the Securities Act.
Registration Statement: Any registration statement of the Issuers that covers any of the
Notes, the Exchange Notes or the Private Exchange Notes (including the related guarantees) filed
with the SEC under the Securities Act, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such registration statement.
Rule 144: Rule 144 under the Securities Act.
Rule 144A: Rule 144A under the Securities Act.
Rule 405: Rule 405 under the Securities Act.
Rule 415: Rule 415 under the Securities Act.
Rule 424: Rule 424 under the Securities Act.
SEC: The U.S. Securities and Exchange Commission.
Securities: See the introductory paragraphs hereto.
Securities Act: The Securities Act of 1933, as amended, and the rules and regulations of the
SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereof.
Shelf Registration: See Section 3(b) hereof.
Shelf Registration Statement: Any Registration Statement relating to a Shelf Registration.
Subsequent Shelf Registration: See Section 3(b) hereof.
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TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and the trustee (if any) under any indenture
governing the Exchange Notes and Private Exchange Notes (and the related guarantees).
underwritten registration or underwritten offering: A registration in which securities of one
or more of the Issuers are sold to an underwriter for reoffering to the public.
Except as otherwise specifically provided, all references in this Agreement to acts, laws,
statutes, rules, regulations, releases, forms, no-action letters and other regulatory requirements
(collectively, “Regulatory Requirements”) shall be deemed to refer also to any amendments thereto
and all subsequent Regulatory Requirements adopted as a replacement thereto having substantially
the same effect therewith; provided that Rule 144 shall not be deemed to amend or replace Rule
144A.
2. Exchange Offer
(a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of
the staff of the SEC, the Issuers shall file with the SEC, no later than the Filing Date, a
Registration Statement (the “Exchange Offer Registration Statement”) on an appropriate registration
form with respect to a registered offer (the “Exchange Offer”) to exchange any and all of the
Registrable Notes for a like aggregate principal amount of debt securities of the Company,
guaranteed by the Guarantors, that are identical in all material respects to the Securities (the
“Exchange Notes”), except that (i) the Exchange Notes shall contain no restrictive legend thereon
and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes
or, if no such interest has been paid, from the Issue Date, and which are entitled to the benefits
of the Indenture or a trust indenture which is identical in all material respects to the Indenture
(other than such changes to the Indenture or any such identical trust indenture as are necessary to
comply with the TIA) and which, in either case, has been qualified under the TIA. The Exchange
Offer shall comply with all applicable tender offer rules and regulations under the Exchange Act
and other applicable laws. The Issuers shall use their reasonable best efforts to (x) cause the
Exchange Offer Registration Statement to be declared effective under the Securities Act on or
before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if
required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders;
and (z) consummate the Exchange Offer on or prior to the 225th day following the Issue Date.
Each Holder (including, without limitation, each Participating Broker-Dealer) who participates
in the Exchange Offer will be required to represent to the Issuers in writing (which may be
contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in
exchange for Registrable Notes tendered are being acquired in the ordinary course of business of
the Person receiving such Exchange Notes, whether or not such recipient is
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such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer
neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving
Exchange Notes from such Holder has an arrangement or understanding with any Person to participate
in the distribution of the Exchange Notes in violation of the provisions of the Securities Act;
(iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving
Exchange Notes from such Holder is an “affiliate” (as defined in Rule 405) of the Company or, if it
is an affiliate of the Company, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable and will provide information to be
included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have
their Notes included in the Shelf Registration Statement and benefit from the provisions regarding
Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of
such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends
to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating
Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making
activities or other trading activities and that it will comply with the applicable provisions of
the Securities Act (including, but not limited to, the prospectus delivery requirements
thereunder).
Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of
this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes
that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and
Exchange Notes held by Participating Broker-Dealers, and the Issuers shall have no further
obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as
to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof.
No securities other than the Exchange Notes shall be included in the Exchange Offer
Registration Statement.
(b) The Issuers shall include within the Prospectus contained in the Exchange Offer
Registration Statement a section entitled “Plan of Distribution,” reasonably acceptable to the
Initial Purchasers which shall contain a summary statement of the positions taken or policies made
by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer
that is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes
received by such broker-dealer in the Exchange Offer (a “Participating Broker-Dealer”), whether
such positions or policies have been publicly disseminated by the staff of the SEC or such
positions or policies represent the prevailing views of the staff of the SEC. Such “Plan of
Distribution” section shall also expressly permit, to the extent permitted by applicable policies
and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus
delivery requirements of the Securities Act, including, to the extent permitted by applicable
policies and regulations of the SEC, all Participating
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Broker-Dealers, and include a statement describing the means by which Participating
Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act.
The Issuers shall use their reasonable best efforts to keep the Exchange Offer Registration
Statement effective and to amend and supplement the Prospectus contained therein in order to permit
such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as is necessary to comply with
applicable law in connection with any resale of the Exchange Notes; provided, however, that such
period shall not be required to exceed 180 days or such longer period if extended pursuant to the
last paragraph of Section 5 hereof (the “Applicable Period”).
If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Securities
acquired by them that have the status of an unsold allotment in the initial distribution, the
Issuers upon the request of the Initial Purchasers shall simultaneously with the delivery of the
Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the “Private Exchange”)
for such Securities held by any such Holder, a like principal amount of notes (the “Private
Exchange Notes”) of the Issuers, guaranteed by the Guarantors, that are identical in all material
respects to the Exchange Notes except for the placement of a restrictive legend on such Private
Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the
Exchange Notes and bear the same CUSIP number as the Exchange Notes.
In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to participate in
the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal and related documents;
(2) use their reasonable best efforts to keep the Exchange Offer open for not less than
30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if
required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with an address in the
Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Securities at any time prior to the close of
business, New York time, on the last Business Day on which the Exchange Offer remains open;
and
(5) otherwise comply in all material respects with all applicable laws, rules and
regulations.
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As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any,
the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly
withdrawn pursuant to the Exchange Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for
exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder of
Securities, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal
amount to the Securities of such Holder so accepted for exchange; provided that, in the case
of any Securities held in global form by a depositary, authentication and delivery to such
depositary of one or more replacement Securities in global form in an equivalent principal
amount thereto for the account of such Holders in accordance with the Indenture shall
satisfy such authentication and delivery requirement.
The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than
that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable
law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall
have been instituted or threatened in any court or by any governmental agency which might
materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private
Exchange, and no material adverse development shall have occurred in any existing action or
proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been
obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or
Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or
(ii) an indenture identical in all material respects to the Indenture and which, in either case,
has been qualified under the TIA or is exempt from such qualification and shall provide that the
Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The
Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and
the Notes shall vote and consent together on all matters as one class and that none of the Exchange
Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate
class on any matter.
(c) If, (i) because of any change in law or in currently prevailing interpretations of the
staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange
Offer is not consummated within 225 days of the Issue Date, (iii) the Initial Purchasers or any
holder of Private Exchange Notes so requests in writing to the Company at any time after the
consummation of the Exchange Offer, or (iv) in the case of any Holder that participates in the
Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be
sold without restriction under state and federal securities laws
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(other than due solely to the status of such Holder as an affiliate of the Issuers within the
meaning of the Securities Act) and so notifies the Company, within 30 days after such Holder first
becomes aware of such restrictions, in the case of each of clauses (i) to and including (iv) of
this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written
notice thereof (the “Shelf Notice”) and shall file a Shelf Registration pursuant to Section 3
hereof.
3. Shelf Registration
If at any time a Shelf Notice is delivered as contemplated by Section 2(c) hereof, then:
(i) Shelf Registration. The Issuers shall as promptly as practicable file with the SEC
a Registration Statement for an offering to be made on a continuous basis pursuant to Rule
415 covering all of the Registrable Notes (the “Initial Shelf Registration”). The Issuers
shall use their reasonable best efforts to file with the SEC the Initial Shelf Registration
on or prior to the applicable Filing Date. The Initial Shelf Registration shall be on Form
S-1 or another appropriate form permitting registration of such Registrable Notes for resale
by Holders in the manner or manners designated by them (including, without limitation, one
or more underwritten offerings). The Issuers shall not permit any securities other than the
Registrable Notes and the Guarantees to be included in the Initial Shelf Registration or any
Subsequent Shelf Registration (as defined below).
The Issuers shall use their reasonable best efforts to cause the Shelf Registration to
be declared effective under the Securities Act on or prior to the Effectiveness Date and to
keep the Initial Shelf Registration continuously effective under the Securities Act until
the date that is two years from the Issue Date or such shorter period ending when all
Registrable Notes covered by the Initial Shelf Registration have been sold in the manner set
forth and as contemplated in the Initial Shelf Registration or, if applicable, a Subsequent
Shelf Registration (the “Effectiveness Period”); provided, however, that the Effectiveness
Period in respect of the Initial Shelf Registration shall be extended to the extent required
to permit dealers to comply with the applicable prospectus delivery requirements of Rule 174
under the Securities Act and as otherwise provided herein and shall be subject to reduction
to the extent that the applicable provisions of Rule 144(k) are amended or revised to reduce
the two year holding period set forth therein.
(ii) Withdrawal of Stop Orders; Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be effective for any reason at
any time during the Effectiveness Period (other than because of the sale of all of the
securities registered thereunder), the Issuers shall use their reasonable best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness
thereof, and in any event shall within 30 days of such cessation of effectiveness amend
such Shelf Registration Statement in a manner to obtain the withdrawal of the order
suspending the effectiveness
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thereof, or file an additional Shelf Registration Statement
pursuant to Rule 415 covering all of the Registrable Notes covered by and not sold under the
Initial Shelf Registration or an earlier Subsequent Shelf Registration (each, a “Subsequent
Shelf Registration”). If a Subsequent Shelf Registration is filed, the Issuers shall use
their reasonable best efforts to cause the Subsequent Shelf Registration to be declared
effective under the Securities Act as soon as practicable after such filing and to keep such
subsequent Shelf Registration continuously effective for a period equal to the number of
days in the Effectiveness Period less the aggregate number of days during which the Initial
Shelf Registration or any Subsequent Shelf Registration was previously continuously
effective. As used herein the term “Shelf Registration” means the Initial Shelf
Registration and any Subsequent Shelf Registration.
(iii) Supplements and Amendments. The Issuers shall promptly supplement and amend the
Shelf Registration if required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration, if required by the Securities Act, or if
reasonably requested by the Holders of a majority in aggregate principal amount of the
Registrable Notes (or their counsel) covered by such Registration Statement with respect to
the information included therein with respect to one or more of such Holders, or by any
underwriter of such Registrable Notes with respect to the information included therein with
respect to such underwriter.
4. Additional Interest
(a) The Issuers and the Initial Purchasers agree that the Holders will suffer damages if the
Issuers fail to fulfill their obligations under Section 2 or Section 3 hereof and that it would not
be feasible to ascertain the extent of such damages with precision. Accordingly, the Issuers agree
to pay, jointly and severally, as liquidated damages, additional interest on the Notes (“Additional
Interest”) under the circumstances and to the extent set forth below (each of which shall be given
independent effect):
(i) if (A) neither the Exchange Offer Registration Statement nor the Initial Shelf
Registration has been filed on or prior to the Filing Date applicable thereto or (B)
notwithstanding that the Issuers have consummated or will consummate the Exchange Offer, the
Issuers are required to file a Shelf Registration and such Shelf Registration is not filed
on or prior to the Filing Date applicable thereto, then, commencing on the day after any
such Filing Date, Additional Interest shall accrue on the principal amount of the Notes at a
rate of 0.50% per annum for the first 90 days immediately following such applicable Filing
Date, and such Additional Interest rate shall increase by an additional 0.50% per annum at
the beginning of each subsequent 90-day period; or
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(ii) if (A) neither the Exchange Offer Registration Statement nor the Initial Shelf
Registration is declared effective by the SEC on or prior to the Effectiveness Date
applicable thereto or (B) notwithstanding that the Issuers have consummated or will
consummate the Exchange Offer, the Issuers are required to file a Shelf Registration and
such Shelf Registration is not declared effective by the SEC on or prior to the
Effectiveness Date applicable to such Shelf Registration, then, commencing on the day after
such Effectiveness Date, Additional Interest shall accrue on the principal amount of the
Notes at a rate of 0.50% per annum for the first 90 days immediately following the day after
such Effectiveness Date, and such Additional Interest rate shall increase by an additional
0.50% per annum at the beginning of each subsequent 90-day period; or
(iii) if (A) the Issuers have not exchanged Exchange Notes for all Notes validly
tendered in accordance with the terms of the Exchange Offer on or prior to ) the earlier of
the 225th day following the Issue Date and the 45th day from date the Exchange Offer
Registration Statement was declared effective or (B) if applicable, a Shelf Registration has
been declared effective and such Shelf Registration ceases to be effective at any time
during the Effectiveness Period, then Additional Interest shall accrue on the principal
amount of the Notes at a rate of 0.50% per annum for the first 90 days commencing on the (x)
the earlier of the 225th day following the Issue Date and the 46th day from date the
Exchange Offer Registration Statement was declared effective, in the case of (A) above, or
(y) the day such Shelf Registration ceases to be effective in the case of (B) above, and
such Additional Interest rate shall increase by an additional 0.50% per annum at the
beginning of each such subsequent 90-day period;
provided, however, that the Additional Interest rate on the Notes may not accrue under more than
one of the foregoing clauses (i) — (iii) at any one time and at no time shall the aggregate amount
of Additional Interest accruing exceed in the aggregate 2.0% per annum; provided, further, however,
that (1) upon the filing of the applicable Exchange Offer Registration Statement or the applicable
Shelf Registration as required hereunder (in the case of clause (i) above of this Section 4), (2)
upon the effectiveness of the Exchange Offer Registration Statement or the applicable Shelf
Registration Statement as required hereunder (in the case of clause (ii) of this Section 4), or (3)
upon the exchange of the Exchange Notes for all Notes tendered (in the case of clause (iii)(A) of
this Section 4), or upon the effectiveness of the applicable Shelf Registration Statement which had
ceased to remain effective (in the case of (iii)(B) of this Section 4), Additional Interest on the
Notes in respect of which such events relate as a result of such clause (or the relevant subclause
thereof), as the case may be, shall cease to accrue.
(b) The Issuers shall notify the Trustee within one business day after each and every date on
which an event occurs in respect of which Additional Interest is required to be paid (an “Event
Date”). Any amounts of Additional Interest due pursuant to (a)(i), (a)(ii)
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or (a)(iii) of this Section 4 will be payable in cash semiannually on each February 15 and
August 15 (to the holders of record on the February 1 and August 1 immediately preceding such
dates), commencing with the first such date occurring after any such Additional Interest commences
to accrue. The amount of Additional Interest will be determined by multiplying the applicable
Additional Interest rate by the principal amount of the Registrable Notes, 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, in the case of a partial month, the actual number of days elapsed), and the denominator of
which is 360.
5. Registration Procedures
In connection with the filing of any Registration Statement pursuant to Section 2 or 3 hereof,
the Issuers shall effect such registrations to permit the sale of the securities covered thereby in
accordance with the intended method or methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Issuers hereunder each of the Issuers
shall:
(a) Prepare and file with the SEC prior to the applicable Filing Date a Registration
Statement or Registration Statements as prescribed by Section 2 or 3 hereof, and use its
reasonable best efforts to cause each such Registration Statement to become effective and
remain effective as provided herein; provided, however, that if (1) such filing is pursuant
to Section 3 hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period relating thereto from whom any Issuer has received written notice that
it will be a Participating Broker-Dealer in the Exchange Offer, before filing any
Registration Statement or Prospectus or any amendments or supplements thereto, the Issuers
shall furnish to and afford the Holders of the Registrable Notes covered by such
Registration Statement (with respect to a Registration Statement filed pursuant to Section 3
hereof) or each such Participating Broker-Dealer (with respect to any such Registration
Statement), as the case may be, their counsel and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents (including copies of any
documents to be incorporated by reference therein and all exhibits thereto) proposed to be
filed (in each case at least five business days prior to such filing). The Issuers shall
not file any Registration Statement or Prospectus or any amendments or supplements thereto
if the Holders of a majority in aggregate principal amount of the Registrable Notes covered
by such Registration Statement, their counsel, or the managing underwriters, if any, shall
reasonably object on a timely basis.
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(b) Prepare and file with the SEC such amendments and post-effective amendments to each
Shelf Registration Statement or Exchange Offer Registration Statement, as the case may be,
as may be necessary to keep such Registration Statement continuously effective for the
Effectiveness Period, the Applicable Period or until consummation of the Exchange Offer, as
the case may be; cause the related Prospectus to be supplemented by any Prospectus
supplement required by applicable law, and as so supplemented to be filed pursuant to Rule
424; and comply with the provisions of the Securities Act and the Exchange Act applicable to
it with respect to the disposition of all securities covered by such Registration Statement
as so amended or in such Prospectus as so supplemented and with respect to the subsequent
resale of any securities being sold by an Participating Broker-Dealer covered by any such
Prospectus. The Issuers shall be deemed not to have used their reasonable best efforts to
keep a Registration Statement effective if any Issuer voluntarily takes any action that
would result in selling Holders of the Registrable Notes covered thereby or Participating
Broker-Dealers seeking to sell Exchange Notes not being able to sell such Registrable Notes
or such Exchange Notes during that period unless such action is required by applicable law
or permitted by this Agreement.
(c) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section
2 hereof is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period relating thereto
from whom any Issuer has received written notice that it will be a Participating
Broker-Dealer in the Exchange Offer, the Issuers will notify the selling Holders of
Registrable Notes (with respect to a Registration Statement filed pursuant to Section 3
hereof), or each such Participating Broker-Dealer (with respect to any such Registration
Statement), as the case may be, their counsel and the managing underwriters, if any,
promptly (but in any event within one business day), and confirm such notice in writing, (i)
when a Prospectus or any Prospectus supplement or post-effective amendment has been filed,
and, with respect to a Registration Statement or any post-effective amendment, when the same
has become effective under the Securities Act (including in such notice a written statement
that any Holder may, upon request, obtain, at the sole expense of the Issuers, one conformed
copy of such Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be incorporated by reference
and exhibits), (ii) of the issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement or of any order preventing or suspending the use
of any preliminary prospectus or the initiation of any proceedings for that purpose, (iii)
if at any time when a prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Notes or resales of Exchange Notes by Participating
Broker-Dealers the representations and warranties of the Issuers contained in any agreement
(including any underwriting agreement) contemplated by Section 5(n) hereof
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cease to be true and correct, (iv) of the receipt by any Issuer of any notification
with respect to the suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Notes or the Exchange Notes to be sold by
any Participating Broker-Dealer for offer or sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, (v) of the happening of any event, the
existence of any condition or any information becoming known that makes any statement made
in such Registration Statement or related Prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect or that requires the
making of any changes in or amendments or supplements to such Registration Statement,
Prospectus or documents so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading, and that in
the case of the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading, and (vi) of the Issuers’ determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) Use its reasonable best efforts to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order preventing or suspending the use
of a Prospectus or suspending the qualification (or exemption from qualification) of any of
the Registrable Notes or the Exchange Notes to be sold by any Participating Broker-Dealer,
for sale in any jurisdiction, and, if any such order is issued, to use its reasonable best
efforts to obtain the withdrawal of any such order at the earliest practicable moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if requested during the
Effectiveness Period by the managing underwriter or underwriters (if any), the Holders of a
majority in aggregate principal amount of the Registrable Notes being sold in connection
with an underwritten offering or any Participating Broker-Dealer, (i) as promptly as
practicable incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or underwriters (if any), such Holders, any
Participating Broker-Dealer or counsel for any of them reasonably request to be included
therein, (ii) 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 incorporated in such prospectus supplement or post-effective amendment, and (iii)
supplement or make amendments to such Registration Statement.
(f) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed pursuant to
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Section 2 hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period,
furnish to each selling Holder of Registrable Notes (with respect to a Registration
Statement filed pursuant to Section 3 hereof) and to each such Participating Broker-Dealer
who so requests (with respect to any such Registration Statement) and to their respective
counsel and each managing underwriter, if any, at the sole expense of the Issuers, one
conformed copy of the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and schedules, and, if
requested, all documents incorporated or deemed to be incorporated therein by reference and
all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section
2 hereof is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, deliver to each
selling Holder of Registrable Notes (with respect to a Registration Statement filed pursuant
to Section 3 hereof), or each such Participating Broker-Dealer (with respect to any such
Registration Statement), as the case may be, their respective counsel, and the underwriters,
if any, at the sole expense of the Issuers, as many copies of the Prospectus or Prospectuses
(including each form of preliminary prospectus) and each amendment or supplement thereto and
any documents incorporated by reference therein as such Persons may reasonably request; and,
subject to the last paragraph of this Section 5, the Issuers hereby consent to the use of
such Prospectus and each amendment or supplement thereto by each of the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the case may be, and the
underwriters or agents, if any, and dealers, if any, in connection with the offering and
sale of the Registrable Notes covered by, or the sale by Participating Broker-Dealers of the
Exchange Notes pursuant to, such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any delivery of a Prospectus
contained in the Exchange Offer Registration Statement by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, use its reasonable best
efforts to register or qualify, and to cooperate with the selling Holders of Registrable
Notes or each such Participating Broker-Dealer, as the case may be, the managing underwriter
or underwriters, if any, and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such Registrable
Notes for offer and sale under the securities or Blue Sky laws of such jurisdictions within
the United States as any selling Holder, Participating Broker-Dealer, or the managing
underwriter or underwriters reasonably request in writing; provided, however, that where
Exchange Notes held by Participating Broker-Dealers or Registrable Notes are offered other
than through an underwritten offering, the Issuers agree to cause their counsel to perform
Blue Sky
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investigations and file registrations and qualifications required to be filed pursuant to this
Section 5(h), keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be kept effective and
do any and all other acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Exchange Notes held by Participating Broker-Dealers or the Registrable
Notes covered by the applicable Registration Statement; provided, however, that no Issuer
shall be required to (A) qualify generally to do business in any jurisdiction where it is
not then so qualified, (B) take any action that would subject it to general service of
process in any such jurisdiction where it is not then so subject or (C) subject itself to
taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then
so subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof, cooperate with the
selling Holders of Registrable Notes and the managing underwriter or underwriters, if any,
to facilitate the timely preparation and delivery of certificates representing Registrable
Notes to be sold, which certificates shall not bear any restrictive legends and shall be in
a form eligible for deposit with The Depository Trust Company; and enable such Registrable
Notes to be in such denominations (subject to applicable requirements contained in the
Indenture) and registered in such names as the managing underwriter or underwriters, if any,
or Holders may request.
(j) Use its reasonable best efforts to cause the Registrable Notes covered by the
Registration Statement to be registered with or approved by such other governmental agencies
or authorities as may be necessary to enable the seller or sellers thereof or the
underwriter or underwriters, if any, to consummate the disposition of such Registrable
Notes, except as may be required solely as a consequence of the nature of such selling
Holder’s business, in which case the Issuers will cooperate in all respects with the filing
of such Registration Statement and the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section
2 hereof is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, upon the
occurrence of any event contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as
practicable prepare and (subject to Section 5(a) hereof) file with the SEC, at the sole
expense of the Issuers, a supplement or post-effective amendment to the Registration
Statement or a supplement to the related Prospectus or any document incorporated or deemed
to be incorporated therein by reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Notes being sold thereunder (with
respect to a Registration Statement filed pursuant to Section 3 hereof) or to the purchasers
of the Exchange Notes to whom such Prospectus
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will be delivered by a Participating Broker-Dealer (with respect to any such
Registration Statement), any such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they were made,
not misleading.
(l) Use its reasonable best efforts to cause the Registrable Notes covered by a
Registration Statement or the Exchange Notes, as the case may be, to be rated with the
appropriate rating agencies, if so requested by the Holders of a majority in aggregate
principal amount of Registrable Notes covered by such Registration Statement or the Exchange
Notes, as the case may be, or the managing underwriter or underwriters, if any.
(m) Prior to the effective date of the first Registration Statement relating to the
Registrable Notes, (i) provide the Trustee with certificates for the Registrable Notes in a
form eligible for deposit with The Depository Trust Company and (ii) provide a CUSIP number
for the Registrable Notes.
(n) In connection with any underwritten offering of Registrable Notes pursuant to a
Shelf Registration, enter into an underwriting agreement as is customary in underwritten
offerings of debt securities similar to the Securities, and take all such other actions as
are reasonably requested by the managing underwriter or underwriters in order to expedite or
facilitate the registration or the disposition of such Registrable Notes and, in such
connection, (i) make such representations and warranties to, and covenants with, the
underwriters with respect to the business of the Issuers (including any acquired business,
properties or entity, if applicable), and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference therein, in each
case, as are customarily made by issuers to underwriters in underwritten offerings of debt
securities similar to the Securities, and confirm the same in writing if and when requested;
(ii) obtain the written opinions of counsel to the Issuers, and written updates thereof in
form, scope and substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters customarily covered in
opinions reasonably requested in underwritten offerings; (iii) obtain “cold comfort” letters
and updates thereof in form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters from the independent certified public accountants of the Issuers
(and, if necessary, any other independent certified public accountants of the Issuers, or of
any business acquired by the Issuers, for which financial statements and financial data are,
or are required to be, included or incorporated by reference in the Registration Statement),
addressed to each of the underwriters, 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 debt securities similar to the Securities; and (iv) if an under-
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writing agreement is entered into, the same shall contain indemnification provisions
and procedures no less favorable to the sellers and underwriters, if any, than those set
forth in Section 7 hereof (or such other provisions and procedures reasonably acceptable to
Holders of a majority in aggregate principal amount of Registrable Notes covered by such
Registration Statement and the managing underwriter or underwriters or agents, if any). The
above shall be done at each closing under such underwriting agreement, or as and to the
extent required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section
2 hereof is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, make available
for inspection by any Initial Purchaser, any selling Holder of such Registrable Notes being
sold (with respect to a Registration Statement filed pursuant to Section 3 hereof), or each
such Participating Broker-Dealer, as the case may be, any underwriter participating in any
such disposition of Registrable Notes, if any, and any attorney, accountant or other agent
retained by any such selling Holder or each such Participating Broker-Dealer (with respect
to any such Registration Statement), as the case may be, or underwriter (any such Initial
Purchasers, Holders, Participating Broker-Dealers, underwriters, attorneys, accountants or
agents, collectively, the “Inspectors”), upon written request, at the offices where normally
kept, during reasonable business hours, all pertinent financial and other records, pertinent
corporate documents and instruments of the Issuers and subsidiaries of the Issuers
(collectively, the “Records”), as shall be reasonably necessary to enable them to exercise
any applicable due diligence responsibilities, and cause the officers, directors and
employees of the Issuers and any of their respective subsidiaries to supply all information
(“Information”) reasonably requested by any such Inspector in connection with such due
diligence responsibilities. Each Inspector shall agree in writing that it will keep the
Records and Information confidential and that it will not disclose any of the Records or
Information that any Issuer determines, in good faith, to be confidential and notifies the
Inspectors in writing are confidential unless (i) the disclosure of such Records or
Information is necessary to avoid or correct a misstatement or omission in such Registration
Statement or Prospectus, (ii) the release of such Records or Information is ordered pursuant
to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of
such Records or Information is necessary or advisable, in the opinion of counsel for any
Inspector, in connection with any action, claim, suit or proceeding, directly or indirectly,
involving or potentially involving such Inspector and arising out of, based upon, relating
to, or involving this Agreement or the Purchase Agreement, or any transactions contemplated
hereby or thereby or arising hereunder or thereunder, or (iv) the information in such
Records or Information has been made generally available to the public other than by an
Inspector or an “affiliate” (as defined in Rule 405) thereof; provided, however, that prior
notice shall be provided as soon as
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practicable to any Issuer of the potential disclosure of any information by such
Inspector pursuant to clauses (i) or (ii) of this sentence to permit the Issuers to obtain a
protective order (or waive the provisions of this paragraph (o)) and that such Inspector
shall take such actions as are reasonably necessary to protect the confidentiality of such
information (if practicable) to the extent such action is otherwise not inconsistent with,
an impairment of or in derogation of the rights and interests of the Holder or any
Inspector.
(p) Provide an indenture trustee for the Registrable Notes or the Exchange Notes, as
the case may be, and cause the Indenture or the trust indenture provided for in Section 2(a)
hereof, as the case may be, to be qualified under the TIA not later than the effective date
of the first Registration Statement relating to the Registrable Notes; and in connection
therewith, cooperate with the trustee under any such indenture and the Holders of the
Registrable Notes, to effect such changes (if any) to such indenture as may be required for
such indenture to be so qualified in accordance with the terms of the TIA; and execute, and
use its reasonable best efforts to cause such trustee to execute, all documents as may be
required to effect such changes, and all other forms and documents required to be filed with
the SEC to enable such indenture to be so qualified in a timely manner.
(q) Comply with all applicable rules and regulations of the SEC and make generally
available to its securityholders with regard to any applicable Registration Statement, a
consolidated earnings statement satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no
later than 45 days after the end of any fiscal quarter (or 90 days after the end of any
12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Notes are sold to underwriters in a firm commitment or best
efforts underwritten offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company, after the effective
date of a Registration Statement, which statements shall cover said 12-month periods.
(r) Upon consummation of the Exchange Offer or a Private Exchange, obtain an opinion of
counsel to the Issuers, in a form customary for underwritten transactions, addressed to the
Trustee for the benefit of all Holders of Registrable Notes participating in the Exchange
Offer or the Private Exchange, as the case may be, that the Exchange Notes or Private
Exchange Notes, as the case may be, the related guarantees and the related indenture
constitute legal, valid and binding obligations of the Issuers, enforceable against the
Issuers in accordance with their respective terms, subject to customary exceptions and
qualifications. If the Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Registrable Notes by Holders to Issuers (or to such other Person as directed
by the Issuers), in exchange for the Exchange Notes
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or the Private Exchange Notes, as the case may be, the Issuers shall xxxx, or cause to
be marked, on such Registrable Notes that such Registrable Notes are being cancelled in
exchange for the Exchange Notes or the Private Exchange Notes, as the case may be; in no
event shall such Registrable Notes be marked as paid or otherwise satisfied.
(s) Cooperate with each seller of Registrable Notes covered by any Registration
Statement and each underwriter, if any, participating in the disposition of such Registrable
Notes and their respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. (the “NASD”).
(t) Use its reasonable best efforts to take all other steps necessary to effect the
registration of the Exchange Notes and/or Registrable Notes covered by a Registration
Statement contemplated hereby.
The Issuers may require each seller of Registrable Notes as to which any registration is being
effected to furnish to the Issuers such information regarding such seller and the distribution of
such Registrable Notes as the Issuers may, from time to time, reasonably request. The Issuers may
exclude from such registration the Registrable Notes of any seller so long as such seller fails to
furnish such information within a reasonable time after receiving such request. Each seller as to
which any Shelf Registration is being effected agrees to furnish promptly to the Issuers all
information required to be disclosed in order to make the information previously furnished to the
Issuers by such seller not materially misleading.
If any such Registration Statement refers to any Holder by name or otherwise as the holder of
any securities of the Issuers, then such Holder shall have the right to require (i) the insertion
therein of language, in form and substance reasonably satisfactory to such Holder, to the effect
that the holding by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the securities covered thereby and that such holding does
not imply that such Holder will assist in meeting any future financial requirements of the Issuers,
or (ii) in the event that such reference to such Holder by name or otherwise is not required by the
Securities Act or any similar federal statute then in force, the deletion of the reference to such
Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to
the time that such reference ceases to be required.
Each Holder of Registrable Notes and each Participating Broker-Dealer agrees by its
acquisition of such Registrable Notes or Exchange Notes to be sold by such Participating
Broker-Dealer, as the case may be, that, upon actual receipt of any notice from the Issuers of the
happening of any event of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi)
hereof, such Holder will forthwith discontinue disposition of such Registrable Notes covered by
such Registration Statement or Prospectus or Exchange Notes to be sold by such Holder or
Participating Broker-Dealer, as the case may be, until such Holder’s or Participating
Broker-Dealer’s receipt of the copies of the supplemented or amended Prospectus
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contemplated by Section 5(k) hereof, or until it is advised in writing (the “Advice”) by the Issuers
that the use of the applicable Prospectus may be resumed, and has received copies of any amendments
or supplements thereto. In the event that the Issuers shall give any such notice, each of the
Applicable Period and the Effectiveness Period shall be extended by the number of days during such
periods from and including the date of the giving of such notice to and including the date when
each seller of Registrable Notes covered by such Registration Statement or Exchange Notes to be
sold by such Participating Broker-Dealer, as the case may be, shall have received (x) the copies of
the supplemented or amended Prospectus contemplated by Section 5(k) hereof or (y) the Advice.
6. Registration Expenses
All fees and expenses incident to the performance of or compliance with this Agreement by the
Issuers shall be borne by the Issuers, whether or not the Exchange Offer Registration Statement or
any Shelf Registration Statement is filed or becomes effective or the Exchange Offer is
consummated, including, without limitation, (i) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required to be made with the NASD in
connection with an underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, fees and disbursements of counsel in
connection with Blue Sky qualifications of the Registrable Notes or Exchange Notes and
determination of the eligibility of the Registrable Notes or Exchange Notes for investment under
the laws of such jurisdictions (x) where the holders of Registrable Notes are located, in the case
of the Exchange Notes, or (y) as provided in Section 5(h) hereof, in the case of Registrable Notes
or Exchange Notes to be sold by a Participating Broker-Dealer during the Applicable Period)), (ii)
printing expenses, including, without limitation, expenses of printing certificates for Registrable
Notes or Exchange Notes in a form eligible for deposit with The Depository Trust Company and of
printing prospectuses if the printing of prospectuses is requested by the managing underwriter or
underwriters, if any, by the Holders of a majority in aggregate principal amount of the Registrable
Notes included in any Registration Statement or in respect of Registrable Notes or Exchange Notes
to be sold by any Participating Broker-Dealer during the Applicable Period, as the case may be,
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Issuers and, in the case of a Shelf Registration, reasonable fees and disbursements of one special
counsel for all of the sellers of Registrable Notes (exclusive of any counsel retained pursuant to
Section 7 hereof), (v) fees and disbursements of all independent certified public accountants
referred to in Section 5(n)(iii) hereof (including, without limitation, the expenses of any “cold
comfort” letters required by or incident to such performance), (vi) Securities Act liability
insurance, if the Issuers desire such insurance, (vii) fees and expenses of all other Persons
retained by the Issuers, (viii) internal expenses of the Issuers (including, without limitation,
all salaries and expenses of officers and employees of the Issuers performing legal or accounting
duties), (ix) the expense of any annual audit, (x) any fees and expenses incurred in connection
with the listing of the securities to be registered on any securities exchange, and the obtaining
of a
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rating of the securities, in each case, if applicable, and (xi) the expenses relating to
printing, word processing and distributing all Registration Statements, underwriting agreements,
indentures and any other documents necessary in order to comply with this Agreement.
7. Indemnification and Contribution.
(a) The Issuers agree, jointly and severally, to indemnify and hold harmless each Holder of
Registrable Notes and each Participating Broker-Dealer selling Exchange Notes during the Applicable
Period, and each Person, if any, who controls such Person or its affiliates within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act (each, a “Participant”) against any losses,
claims, damages or liabilities to which any Participant may become subject under the Act, the
Exchange Act or otherwise, insofar as any such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by any Issuer contained in
any application or any other document or any amendment or supplement thereto executed by any
Issuer based upon written information furnished by or on behalf of any Issuer filed in any
jurisdiction in order to qualify the Notes under the securities or “Blue Sky” laws thereof
or filed with the SEC or any securities association or securities exchange (each, an
“Application”);
(ii) any untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement (or any amendment thereto) or Prospectus (as amended or
supplemented if any of the Issuers has furnished any amendments or supplements thereto) or
any preliminary prospectus; or
(iii) the omission or alleged omission to state, in any Registration Statement (or any
amendment thereto) or Prospectus (as amended or supplemented if any of the Issuers has
furnished any amendments or supplements thereto) or any preliminary prospectus or any
Application or any other document or any amendment or supplement thereto, a material fact
required to be stated therein or necessary to make the statements therein not misleading;
and will reimburse, as incurred, the Participant for any legal or other expenses incurred by the
Participant in connection with investigating, defending against or appearing as a third-party
witness in connection with any such loss, claim, damage, liability or action; provided, however,
the Issuers will not be liable in any such case to the extent that any such loss, claim, damage, or
liability arises out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in any Registration Statement (or any amendment thereto) or
Prospectus (as amended or supplemented if any of the Issuers has furnished any amendments or
supplements thereto) or any preliminary prospectus or Application or any amendment or supplement
thereto in reliance upon and in conformity with information
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relating to any Participant furnished to the Issuers by such Participant specifically for use
therein. The indemnity provided for in this Section 7 will be in addition to any liability that
the Issuers may otherwise have to the indemnified parties. The Issuers shall not be liable under
this Section 7 for any settlement of any claim or action effected without their prior written
consent, which shall not be unreasonably withheld.
(b) Each Participant, severally and not jointly, agrees to indemnify and hold harmless the
Issuers, their directors, their officers who sign any Registration Statement and each person, if
any, who controls the Issuers within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to which the Issuers or any such
director, officer or controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement or Prospectus, any amendment or supplement thereto, or
any preliminary prospectus, or (ii) the omission or the alleged omission to state therein a
material fact necessary to make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written information concerning
such Participant, furnished to the Issuers by such Participant, specifically for use therein; and
subject to the limitation set forth immediately preceding this clause, will reimburse, as incurred,
any legal or other expenses incurred by the Issuers or any such director, officer or controlling
person in connection with investigating or defending against or appearing as a third party witness
in connection with any such loss, claim, damage, liability or action in respect thereof. The
indemnity provided for in this Section 7 will be in addition to any liability that the Participants
may otherwise have to the indemnified parties. The Participants shall not be liable under this
Section 7 for any settlement of any claim or action effected without their consent, which shall not
be unreasonably withheld. The Issuers shall not, without the prior written consent of such
Participant, effect any settlement or compromise of any pending or threatened proceeding in respect
of which any Participant is or could have been a party, or indemnity could have been sought
hereunder by any Participant, unless such settlement (A) includes an unconditional written release
of the Participants, in form and substance reasonably satisfactory to the Participants, from all
liability on claims that are the subject matter of such proceeding and (B) does not include any
statement as to an admission of fault, culpability or failure to act by or on behalf of any
Participant.
(c) Promptly after receipt by an indemnified party under this Section 7 of notice of the
commencement of any action for which such indemnified party is entitled to indemnification under
this Section 7, such indemnified party will, if a claim in respect thereof is to be made against
the indemnifying party under this Section 7, notify the indemnifying party of the commencement
thereof in writing; but the omission to so notify the indemnifying party (i) will not relieve it
from any liability under paragraph (a) or (b) above unless and to the
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extent such failure results in the forfeiture by the indemnifying party of substantial rights
and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification obligation provided in paragraphs (a) and
(b) above. In case any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party; provided, however, that if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a conflict of interest,
(ii) the defendants in any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have been advised by counsel that there may be one or more
legal defenses available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after receipt by the indemnifying party of notice of the institution
of such action, then, in each such case, the indemnifying party shall not have the right to direct
the defense of such action on behalf of such indemnified party or parties and such indemnified
party or parties shall have the right to select separate counsel to defend such action on behalf of
such indemnified party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and approval by such indemnified party of
counsel appointed to defend such action, the indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses, other than reasonable costs
of investigation, subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel in accordance with
the proviso to the immediately preceding sentence (it being understood, however, that in connection
with such action the indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general allegations or
circumstances, designated by Participants who sold a majority in interest of the Registrable Notes
and Exchange Notes sold by all such Participants in the case of paragraph (a) of this Section 7 or
the Issuers in the case of paragraph (b) of this Section 7, representing the indemnified parties
under such paragraph (a) or paragraph (b), as the case may be, who are parties to such action or
actions) or (ii) the indemnifying party has authorized in writing the employment of counsel for the
indemnified party at the expense of the indemnifying party. All fees and expenses reimbursed
pursuant to this paragraph (c) shall be reimbursed as they are incurred. After such notice from
the indemnifying party to such indemnified party, the indemnifying party will not be liable for the
costs and expenses of any settlement of such action effected by such indemnified party without the
prior written consent of the indemnifying party (which consent shall not be unreasonably withheld),
unless such indemnified party waived in writing its rights under this Section 7, in which case the
indemnified party may effect such a settlement without such consent.
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(d) In circumstances in which the indemnity agreement provided for in the preceding paragraphs
of this Section 7 is unavailable to, or insufficient to hold harmless, an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution, shall contribute to
the amount paid or payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect (i) the
relative benefits received by the indemnifying party or parties on the one hand and the indemnified
party on the other from the offering of the Notes or (ii) if the allocation provided by the
foregoing clause (i) is not permitted by applicable law, not only such relative benefits but also
the relative fault of the indemnifying party or parties on the one hand and the indemnified party
on the other in connection with the statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The
relative benefits received by the Issuers on the one hand and such Participant on the other shall
be deemed to be in the same proportion as the total proceeds from the offering (before deducting
expenses) of the Notes received by the Issuers bear to the total net profit received by such
Participant in connection with the sale of the Notes. The relative fault of the parties 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 on the one hand, or the Participants on the other, the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission or alleged statement or omission, and any other equitable considerations appropriate in
the circumstances. The parties agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation or by any other method of
allocation that does not take into account the equitable considerations referred to in the first
sentence of this paragraph (d). Notwithstanding any other provision of this paragraph (d), no
Participant shall be obligated to make contributions hereunder that in the aggregate exceed the
total net profit received by such Participant in connection with the sale of the Notes, less the
aggregate amount of any damages that such Participant has otherwise been required to pay by reason
of the untrue or alleged untrue statements or the omissions or alleged omissions to state a
material fact, and no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each person, if any, who
controls a Participant within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act shall have the same rights to contribution as the Participants, and each director of any
Issuer, each officer of any Issuer and each person, if any, who controls any Issuer within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Issuers. The Participants’ obligation to contribute pursuant to this Section
is several and not joint.
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8. Rules 144 and 144A
Each of the Issuers covenants and agrees that it will file the reports required to be filed by
it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC
thereunder in a timely manner in accordance with the requirements of the Securities Act and the
Exchange Act and, if at any time such Issuer is not required to file such reports, such Issuer
will, upon the request of any Holder or beneficial owner of Registrable Notes, make available such
information necessary to permit sales pursuant to Rule 144A. Each of the Issuers further covenants
and agrees, for so long as any Registrable Notes remain outstanding that it will take such further
action as any Holder of Registrable Notes may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Notes without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144(k) under the Securities
Act and Rule 144A.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and manager or managers that
will manage the offering will be selected by the Holders of a majority in aggregate principal
amount of such Registrable Notes included in such offering and shall be reasonably acceptable to
the Issuers.
No Holder of Registrable Notes may participate in any underwritten registration hereunder
unless such Holder (a) agrees to sell such Holder’s Registrable Notes on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements
and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting arrangements.
10. Miscellaneous
(a) No Inconsistent Agreements. The Issuers have not, as of the date hereof, and the Issuers
shall not, after the date of this Agreement, enter into any agreement with respect to any of their
securities that is inconsistent with the rights granted to the Holders of Registrable Notes in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the rights granted to the
holders of the Issuers’ other issued and outstanding securities under any such agreements. The
Issuers will not enter into any agreement with respect to any of their securities which will grant
to any Person piggy-back registration rights with respect to any Registration Statement.
(b) Adjustments Affecting Registrable Notes. The Issuers shall not, directly or indirectly,
take any action with respect to the Registrable Notes as a class that would
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adversely affect the ability of the Holders of Registrable Notes to include such Registrable
Notes in a registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof may not be given,
otherwise than with the prior written consent of (I) the Company, and (II)(A) the Holders of not
less than a majority in aggregate principal amount of the then outstanding Registrable Notes and
(B) in circumstances that would adversely affect the Participating Broker-Dealers, the
Participating Broker-Dealers holding not less than a majority in aggregate principal amount of the
Exchange Notes held by all Participating Broker-Dealers; provided, however, that Section 7 and this
Section 10(c) may not be amended, modified or supplemented without the prior written consent of
each Holder and each Participating Broker-Dealer (including any person who was a Holder or
Participating Broker-Dealer of Registrable Notes or Exchange Notes, as the case may be, disposed of
pursuant to any Registration Statement) affected by any such amendment, modification or supplement.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders of Registrable Notes whose
securities are being sold pursuant to a Registration Statement and that does not directly or
indirectly affect, impair, limit or compromise the rights of other Holders of Registrable Notes may
be given by Holders of at least a majority in aggregate principal amount of the Registrable Notes
being sold pursuant to such Registration Statement.
(d) Notices. All notices and other communications (including, without limitation, any notices
or other communications to the Trustee) provided for or permitted hereunder shall be made in
writing by hand-delivery, registered first-class mail, next-day air courier or facsimile:
(i) if to a Holder of the Registrable Notes or any Participating Broker-Dealer, at the
most current address of such Holder or Participating Broker-Dealer, as the case may be, set
forth on the records of the registrar under the Indenture, with a copy in like manner to the
Initial Purchasers as follows:
Banc of America Securities LLC
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxx Xxxxxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxx Xxxxxxxx
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with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx llp
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
| (ii) | if to the Initial Purchasers, at the address specified in Section 10(d)(i); | ||
| (iii) | if to the Issuers, at the address as follows: |
Grant Prideco, Inc.
000 X. Xxx Xxxxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxxx, Esq.
with a copy to:
Fulbright & Xxxxxxxx L.L.P.
0000 XxXxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx, Esq.
000 X. Xxx Xxxxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxxx, Esq.
with a copy to:
Fulbright & Xxxxxxxx L.L.P.
0000 XxXxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx, Esq.
All such notices and communications shall be deemed to have been duly given: when delivered
by hand, if personally delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; one Business Day after being timely delivered to a next-day air courier; and
when receipt is acknowledged by the addressee, if sent by facsimile.
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 and in the manner specified in such
Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties hereto, the Holders and the Participating
Broker-Dealers; provided, however, that nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Registrable Notes in violation of the terms of the Purchase
Agreement or the Indenture.
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(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 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, AS APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE
OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD REQUIRE THE APPLICATION OF
ANY OTHER LAW.
(i) Severability. If any term, provision, covenant or restriction of this Agreement is held
by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall
use their reasonable best efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions without including
any of such that may be hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Issuers or Their Affiliates. Whenever the consent or approval of
Holders of a specified percentage of Registrable Notes is required hereunder, Registrable Notes
held by the Issuers or their affiliates (as such term is defined in Rule 405 under the Securities
Act) shall not be counted in determining whether such consent or approval was given by the Holders
of such required percentage.
(k) Third-Party Beneficiaries. Holders of Registrable Notes and Participating Broker-Dealers
are intended third-party beneficiaries of this Agreement, and this Agreement may be enforced by
such Persons.
(l) Entire Agreement. This Agreement, together with the Purchase Agreement and the Indenture,
is intended by the parties as a final and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein and therein and any and all
prior oral or written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand and the Issuers on
the other, or between or among any agents,
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representatives, parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein and replaced
hereby.
[Signature Pages Follow]
S-1
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| GRANT PRIDECO, INC. |
||||
| By: | /s/ Xxxxxxx Xxxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxxx | |||
| Title: | Chief Financial Officer and Senior Vice President | |||
S-2
| XL SYSTEMS, L.P. By Grant Prideco Holding, LLC, its general partner GRANT PRIDECO, L.P. By Grant Prideco Holding, LLC, its general partner PLEXUS DEEPWATER TECHNOLOGIES LTD. By Grant Prideco Holding, LLC, its general partner REEDHYCALOG, L.P. By ReedHycalog, LLC, its general partner XL SYSTEMS INTERNATIONAL, INC. GP EXPATRIATE SERVICES, INC. GRANT PRIDECO HOLDING, LLC GRANT PRIDECO PC COMPOSITES HOLDINGS, LLC TA INDUSTRIES, INC. TUBE-ALLOY CAPITAL CORPORATION TUBE-ALLOY CORPORATION TAI HOLDING, INC. INTELLIPIPE, INC. GRANT PRIDECO MARINE PRODUCTS AND SERVICES INTERNATIONAL INC. REEDHYCALOG INTERNATIONAL HOLDING, LLC REEDHYCALOG NORWAY, LLC REEDHYCALOG COLOMBIA, LLC REEDHYCALOG AZERBAIJAN, LLC REEDHYCALOG ARGENTINA, LLC REEDHYCALOG KAZAKHSTAN, LLC REEDHYCALOG UTAH, LLC REEDHYCALOG CIS, LLC REEDHYCALOG THAILAND, LLC REEDHYCALOG, LLC |
||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Treasurer | |||
S-3
| GRANT PRIDECO USA, LLC GP USA HOLDING, LLC GRANT PRIDECO FINANCE, LLC GRANT PRIDECO EUROPEAN HOLDING, LLC |
||||
| By: | /s/ Xxx Xxxxxxx | |||
| Name: | Xxx Xxxxxxx | |||
| Title: | President | |||
S-4
The foregoing Agreement is hereby confirmed
and accepted as of the date
first above written.
and accepted as of the date
first above written.
BANC OF AMERICA SECURITIES LLC
DEUTSCHE BANK SECURITIES INC.
CITIGROUP GLOBAL MARKETS INC.
CREDIT SUISSE FIRST BOSTON LLC
X.X. XXXXXX SECURITIES INC.
NATEXIS BLEICHROEDER INC.
DEUTSCHE BANK SECURITIES INC.
CITIGROUP GLOBAL MARKETS INC.
CREDIT SUISSE FIRST BOSTON LLC
X.X. XXXXXX SECURITIES INC.
NATEXIS BLEICHROEDER INC.
By: BANC OF AMERICA SECURITIES LLC, as representative
of the Initial Purchasers
of the Initial Purchasers
By:
|
/s/ Xxx Xxxxxxxx | |||
| Name: Xxx Xxxxxxxx | ||||
| Title: Managing Director |
