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EXHIBIT 4.2
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
Dated as of November 12, 1998
among
XXXXX PET CARE COMPANY,
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
and
CHASE SECURITIES INC.
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This Registration Rights Agreement (the "Agreement") is made and
entered into as of November 12, 1998 by and between XXXXX PET CARE COMPANY, a
Delaware corporation (the "Issuer"), and XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES
CORPORATION and CHASE SECURITIES INC. (the "Co-Dealer Managers"). This Agreement
is being entered into by the Co-Dealer Managers for the benefit of the holders
of $150 million of the 9 3/4% Senior Subordinated Notes due 2007 of the Issuer
acquired by such holders on November 12, 1998.
The Issuer and the Co-Dealer Managers hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission pursuant thereto.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: As that term is defined in the Indenture.
Co-Dealer Managers: Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
and Chase Securities Inc.
Commission: The Securities and Exchange Commission.
Consummate: When used to qualify the term "Exchange Offer" shall mean
validly and lawfully to issue and deliver the Exchange Securities pursuant to
the Exchange Offer for all Transfer Restricted Securities validly tendered and
not validly withdrawn pursuant thereto in accordance with the terms of this
Agreement.
Effectiveness Target Date: As defined in Section 5 of this Agreement.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the Commission pursuant thereto.
Exchange Offer: The registration under the Act by the Issuer of the New
Notes pursuant to a Registration Statement pursuant to which the Issuer offers
the Holders of all outstanding Old Notes that are Transfer Restricted Securities
the opportunity to exchange all such outstanding Old Notes that are Transfer
Restricted Securities held by such Holders for New Notes in an aggregate
principal amount equal to the aggregate principal amount of the Old Notes that
are Transfer Restricted Securities tendered in such exchange offer by such
Holders.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
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Holders: As defined in Section 2(b) of this Agreement.
Indenture: The Indenture, dated as of November 12, 1998, by and between
the Issuer and Wilmington Trust as trustee (the "Trustee"), pursuant to which
the Notes are to be issued, as such Indenture is amended or supplemented from
time to time in accordance with its terms.
Interest Payment Date: As defined in the Notes.
Issue Date: The date the Old Notes are originally issued (November 12,
1998).
NASD: National Association of Securities Dealers, Inc.
New Notes: The 9 3/4% Senior Subordinated Notes due 2007 [,SERIES B],
of the Issuer to be issued pursuant to the Indenture in connection with the
Exchange Offer, having terms substantially identical in all material respects to
the Old Notes (except that the New Notes will not contain terms with respect to
transfer restrictions) and evidencing the same debt as the Old Notes.
Notes: Old Notes and New Notes.
Old Notes: The 9 3/4% Senior Subordinated Notes due 2007 [,SERIES A] of
the Issuer issued pursuant to the Indenture on the Issue Date.
Participating Broker Dealer: As defined in Section 6(a)(iii) of this
Agreement.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in any Registration Statement, as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Transfer Restricted Securities or the New
Notes covered by such Registration Statement, and all other amendments and
supplements thereto, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference, if any, in
such Prospectus.
Registration Default: As defined in Section 5 of this Agreement.
Registration Statement: Any registration statement of the Issuer
relating to (a) an offering of New Notes pursuant to an Exchange Offer or (b)
the registration for resale of Transfer Restricted Securities pursuant to the
Shelf Registration Statement that is filed pursuant to the provisions of this
Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including pre- and post-effective
amendments) and all exhibits and material incorporated by reference or deemed to
be incorporated by reference, if any, therein.
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Shelf Filing Deadline: As defined in Section 4(a) of this Agreement.
Shelf Registration Statement: As defined in Section 4(a) of this
Agreement.
Subsidiary: With respect to any Person, any other Person of which a
majority of the equity ownership or the voting securities is at the time owned,
directly or indirectly, by such Person or by one or more other subsidiaries of
such Person or a combination thereof.
TIA: The Trust Indenture Act of 1939, as amended, as in effect on the
date of the Indenture.
Transfer Restricted Securities: Each Old Note until, with respect to
each such Old Note, the earliest to occur of (i) the date on which each such Old
Note has been exchanged by a Person other than a Broker-Dealer for a New Note in
the Exchange Offer, (ii) following the exchange by a Broker-Dealer in the
Exchange Offer of an Old Note for a New Note, the date on which such New Note is
sold to a purchaser who receives from such Broker-Dealer on or prior to the date
of such sale a copy of the prospectus contained in the Exchange Offer
Registration Statement, (iii) the date on which such Old Note has been
effectively registered under the Act and disposed of in accordance with the
Shelf Registration Statement or (iv) the date on which such Old Note is
distributed to the public pursuant to Rule 144 under the Act.
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Issuer are sold to an underwriter for reoffering to the
public pursuant to an effective Registration Statement.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be
a holder of Transfer Restricted Securities (each, a "Holder") whenever such
Person beneficially owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) To the extent not prohibited by applicable law or interpretation of
the staff of the Commission, the Issuer shall use its reasonable best efforts to
(i) cause to be filed with the Commission as soon as practicable, a Registration
Statement under the Act relating to the New Notes and the Exchange Offer and
(ii) cause such Registration Statement to be declared effective by the
Commission as soon as practicable. In connection with the foregoing, the Issuer
shall use its reasonable best efforts to (A) file all pre-effective amendments
to such Registration Statement as may be necessary to cause such Registration
Statement to become effective, (B) if applicable, file a post-effective
amendment to such Registration Statement pursuant to Rule 430A under the Act,
(C) cause all necessary filings in connection with the registration and
qualification of the New Notes
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to be made under the Blue Sky laws of such jurisdictions as are necessary to
permit Consummation of the Exchange Offer (provided, however, that the Issuer
shall not be obligated to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified or to take any action that would subject it to
general service of process or taxation in any jurisdiction where it is not so
subject, except service of process with respect to the offering and sale of the
New Notes) and (D) upon the effectiveness of such Registration Statement,
commence the Exchange Offer and use its reasonable best efforts to issue New
Notes in exchange for all Old Notes tendered in the Exchange Offer, unless the
Exchange Offer would not be permitted by any applicable law or interpretation of
the staff of the Commission. The Exchange Offer shall be on the appropriate form
permitting registration of the New Notes to be offered in exchange for the
Transfer Restricted Securities and to permit resales of New Notes held by
Broker-Dealers as contemplated by Section 3(c) below. If, after such Exchange
Offer Registration Statement initially is declared effective by the Commission,
the Exchange Offer or the issuance of New Notes under the Exchange Offer or the
resale of New Notes received by Broker-Dealers in the Exchange Offer as
contemplated by Section 3(c) below 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 shall be deemed not to
have become effective for purposes of this Agreement during the period that such
stop order, injunction or other similar order or requirement shall remain in
effect.
(b) The Issuer shall cause the Exchange Offer Registration Statement to
be effective continuously and shall keep the Exchange Offer open for a period of
not less than 30 days (or longer if required by applicable law) after the date
notice of the Exchange Offer is mailed to the Holders. The Issuer shall cause
the Exchange Offer to comply with all applicable federal and state securities
laws. The Issuer shall only offer to exchange New Notes for Old Notes in the
Exchange Offer, and only the New Notes shall be registered under the Exchange
Offer Registration Statement.
(c) The Issuer shall indicate in a "Plan of Distribution" section
contained in the Prospectus included in the Exchange Offer Registration
Statement that any Broker-Dealer that holds Old Notes that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Issuer), may exchange such Old
Notes pursuant to the Exchange Offer; provided, however, that such Broker-Dealer
may be deemed to be an "underwriter" within the meaning of the Act and must,
therefore, deliver a prospectus meeting the requirements of the Act in
connection with any resales of the New Notes received by such Broker-Dealer in
the Exchange Offer. Such "Plan of Distribution" section shall allow the use of
the Prospectus by all Persons subject to the prospectus delivery requirements of
the Act, including Participating Broker-Dealers (as defined in Section 6(a)(ii)
hereof), and shall also contain all other information with respect to such
resales by Broker-Dealers that the Commission may require to permit such resales
pursuant thereto, but such "Plan of Distribution" shall not name any such
Broker-Dealer or disclose the amount of Notes held by any such Broker-Dealer
except to the extent required by the Commission.
(d) The Issuer may require each Holder of Transfer Restricted
Securities as a condition to its participation in the Exchange Offer to
represent to the Issuer and its counsel in writing (which
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may be contained in the applicable letter of transmittal) that at the time of
consummation of the Exchange Offer (i) any New Notes received by such holder
will be acquired in the ordinary course of its business, (ii) such holder will
have no arrangement or understanding with any person to participate in the
distribution (within the meaning of the Securities Act) of the New Notes, (iii)
that such holder is not an "affiliate" of the Issuer, as defined in Rule 405 of
the Securities Act, and (iv) if the holder is not a broker-dealer or is a
broker-dealer but will not receive New Notes for its own account in exchange for
the Old Notes, neither the holder nor any such other person is engaged in or
intends to participate in a distribution of the New Notes. If the Holder is an
"affiliate," that it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable. If the Holder is a
broker-dealer that will receive New Notes for its own account in exchange for
Old Notes, it will represent that the Old Notes to be exchanged for the New
Notes were acquired by it as a result of market-making activities or other
trading activities, and acknowledge that it will deliver a prospectus meeting
the requirements of the Securities Act in connection with any resale of such New
Notes. It is understood that by acknowledging that it will deliver and by
delivering a prospectus meeting the requirements of the Securities Act in
connection with any resale of such New Notes, the Holder is not admitting that
it is an "underwriter" within the meaning of the Securities Act.
The Issuer shall use its reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of New Notes acquired by Broker-Dealers
for their own accounts as a result of market-making activities or other trading
activities, and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time for such period of time as such Broker-Dealers must
comply with prospectus delivery requirements of the Exchange Act in order to
resell the New Notes. The Issuer shall provide sufficient copies of the latest
version of such Prospectus to Broker-Dealers promptly upon request at any time
during such period in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Issuer is not required to file an
Exchange Offer Registration Statement or to consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or applicable
interpretation of the staff of the Commission or (ii) for any reason the
Exchange Offer Registration Statement is not declared effective within 150 days
after the date of original issuance of the Old Notes or the Issuer does not
consummate the Exchange Offer within 45 days following the effectiveness date of
the Exchange Offer Registration Statement, or (iii) any Holder of Transfer
Restricted Securities shall notify the Issuer in writing within 20 Business Days
of the commencement of the Exchange Offer that such Holder, based on the advice
of counsel, (A) is prohibited by applicable law or Commission policy from
participating in the Exchange Offer, or (B) will not receive freely tradeable
New Notes in the Exchange Offer other than by reason of such Holder being an
affiliate of the Issuer (it being understood that the requirement that a
Participating Broker-Dealer deliver the prospectus contained in the Exchange
Offer Registration Statement in connection with sales of New Notes shall not
result in such New Notes being not
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"freely tradeable"), then the Issuer shall use its reasonable best efforts to
(x) cause to be filed a shelf registration statement pursuant to Rule 415 under
the Act, which may be an amendment to the Exchange Offer Registration Statement
(in either event, the "Shelf Registration Statement"), as promptly as
practicable, which Shelf Registration Statement shall provide for resales of all
Transfer Restricted Securities the Holders of which shall have provided the
information required pursuant to Section 4(b) of this Agreement, and (y) use its
reasonable best efforts to cause such Shelf Registration Statement to be
declared effective by the Commission. The Issuer shall use its reasonable best
efforts to keep such Shelf Registration Statement continuously effective,
supplemented and amended as required by the provisions of Sections 6(b) and (c)
of this Agreement to the extent necessary to ensure that it is available for
resales of Notes by the Holders of Transfer Restricted Securities entitled to
the benefit of this Section 4(a) and to ensure that it conforms with the
requirements of this Agreement, the Act and the policies, rules and regulations
of the Commission as announced from time to time, for a continuous period of two
years following the date on which such Shelf Registration Statement becomes
effective under the Act or such shorter period that will terminate when all the
Notes covered by the Shelf Registration Statement have been sold pursuant to
such Shelf Registration Statement.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Issuer in writing, within 15 business days after receipt of a request
therefor, such information regarding such Holder as the Issuer may reasonably
request for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included in such Shelf Registration
Statement. Each Holder as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Issuer all information required to be
disclosed to make the information previously furnished to the Issuer by such
Holder not materially misleading and to be bound by provisions of this
Agreement.
SECTION 5. SPECIAL INTEREST
If (i) the Exchange Offer Registration Statement has not been filed
with the Commission on or prior to the 90th day following the Issue Date, (ii)
the Exchange Offer Registration Statement has not been declared effective on or
prior to the 150th day following Issue Date, (iii) the Exchange Offer has not
been consummated on or prior to the 45th day following the effective date of the
Exchange Offer Registration Statement, (iv) a Shelf Registration Statement has
not been filed on or prior to 30 days after the obligation to do so arises, or
(v) after either the Exchange Offer Registration Statement or the Shelf
Registration Statement is declared effective, such Registration Statement
thereafter ceases to be effective or usable (subject to certain exceptions) in
connection with resales of Notes in accordance with and during the periods
specified in the Registration Agreement (each such event referred to in clauses
(i) through (v), a "Registration Default"), the Issuer hereby agrees to pay
liquidated damages to each Holder of Transfer Restricted Securities in an amount
equal to the additional interest ("Special Interest") which will accrue on the
Old Notes and the New Notes (in addition to the stated interest on the Old Notes
and the New Notes) from and including the date on which any such Registration
Default shall occur to, but excluding, the date on
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which all Registration Defaults have been cured. Such Special Interest will
accrue at a rate of 0.5% per annum during the 90-day period immediately
following the occurrence of any Registration Default and shall increase by 0.25%
per annum at the end of each subsequent 90-day period, but in no event shall
such rate exceed 1.5% per annum. Notwithstanding the foregoing, the Issuer shall
not be required to pay Special Interest to each Holder of Transfer Restricted
Securities if the Registration Default arises from the failure of the Issuer to
file, or cause to become effective, a Shelf Registration Statement within the
time period required by Section 4 of this Agreement and such Registration
Default is by reason of the failure of the Holders to provide the information
regarding the Holders reasonably requested by the Issuer, the NASD or any other
regulatory agency having jurisdiction over any of the Holders at least 10
Business Days prior to such Registration Default. All accrued Special Interest
shall be paid by the Issuer to the Holders in the same manner in which payments
of other interest are made pursuant to the Indenture. Following the cure of all
Registration Defaults relating to any particular Transfer Restricted Securities,
the accrual of liquidated damages with respect to such Transfer Restricted
Securities will cease.
All obligations of the Issuer set forth in the preceding paragraph that
are outstanding with respect to any Transfer Restricted Security at the time
such security ceases to be a Transfer Restricted Security shall survive until
such time as all such obligations with respect to such Transfer Restricted
Security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Issuer shall comply with all of the provisions of Section
6(c) below, shall use its reasonable best efforts to effect such exchange to
permit the sale of Transfer Restricted Securities being sold in accordance with
the intended method or methods of distribution thereof, and shall comply with
all of the following provisions:
(i) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Issuer,
prior to the Consummation of the Exchange Offer, a written
representation to the Issuer (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement)
to the effect that (A) it is not an affiliate of the Issuer, (B) it is
not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate in, a
distribution of the New Notes to be issued in the Exchange Offer and
(C) it is acquiring the New Notes in its ordinary course of business.
In addition, all such Holders of Transfer Restricted Securities shall
otherwise cooperate in the Issuer's preparations for the Exchange
Offer.
(ii) The Issuer and the Co-Dealer Managers acknowledge that
the staff of the Commission has taken the position that any
broker-dealer that owns New Notes that were received by such
broker-dealer for its own account in the Exchange Offer (a
"Participating Broker-Dealer") may be deemed to be an "underwriter"
within the meaning of the Act and must deliver a prospectus meeting the
requirements of the Act in connection with any resale
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of such New Notes (other than a resale of an unsold allotment resulting
from the original offering of the Notes).
The Issuer and the Co-Dealer Managers also acknowledge that it is the
Commission 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 New Notes, without naming the Participating
Broker-Dealers or specifying the amount of New Notes owned by them, such
Prospectus may be delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligations under the Act in connection with resales of New
Notes for their own accounts, so long as the Prospectus otherwise meets the
requirements of the Act.
(b) Shelf Registration Statement. If a Shelf Registration Statement is
required by this Agreement, the Issuer shall comply with all the provisions of
Section 6(c) of this Agreement and shall use its reasonable best efforts to
effect such registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution of such Transfer Restricted Securities and, in connection
therewith, the Issuer will as expeditiously as possible prepare and file with
the Commission a Shelf Registration Statement relating to the registration on
any appropriate form under the Act, which form shall be available for the sale
of the Transfer Restricted Securities in accordance with the intended method or
methods of distribution of such Transfer Restricted Securities.
(c) General Provisions. In connection with any Registration Statement
and any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus, to the extent that the same are required
to be available to permit resales of Notes by Broker-Dealers), the Issuer shall:
(i) use its reasonable best efforts to keep such Registration
Statement continuously effective for the applicable time period
required hereunder; upon the occurrence of any event that would cause
any such Registration Statement or the Prospectus contained therein (A)
to contain a material misstatement or omission or (B) not to be
effective and usable for resale of Transfer Restricted Securities
during the period required by this Agreement, the Issuer shall promptly
notify the Holders to suspend use of the Prospectus, and the Holders
shall suspend use of the Prospectus, and such Holders shall not
communicate non-public information to any third party, in violation of
the securities laws, until the Issuer has made an appropriate amendment
to such Registration Statement, in the case of clause (A), correcting
any such misstatement or omission, and, in the case of either clause
(A) or (B), the Issuer shall use its reasonable best efforts to cause
such amendment to be declared effective and such Registration Statement
and the related Prospectus to become usable for their intended
purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to such Registration Statement as may be
necessary to keep the Registration
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Statement effective for the applicable period set forth in Section 3 or
4 of this Agreement, as applicable, or such shorter period as will
terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act during the
applicable time period required hereunder and to comply fully with the
applicable provisions of Rules 424 and 430A under the Act in a timely
manner; and comply with the provisions of the Act and the Exchange Act
with respect to the disposition of all Transfer Restricted Securities
covered by such Registration Statement during such period in accordance
with the intended method or methods of distribution by the sellers of
such securities set forth in such Registration Statement as so amended
or in such Prospectus as so supplemented;
(iii) advise the underwriter(s), if any, and, in the case of a
Shelf Registration Statement, each of the selling Holders promptly and,
if requested by such Persons, to confirm such advice in writing, (A)
when the Prospectus or any prospectus supplement or post-effective
amendment has been filed and, with respect to any Registration
Statement or any post-effective amendment thereto, when the same has
become effective, (B) of any request by the Commission for amendments
to the Registration Statement or amendments or supplements to the
Prospectus or for additional information relating to such Registration
Statement or Prospectus, (C) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
under the Act or of the suspension by any state securities commission
of the qualification of the Transfer Restricted Securities for offering
or sale in any jurisdiction, or the initiation of any proceeding for
any of the preceding purposes, (D) of the existence of any fact or the
happening of any event that makes any statement of a material fact made
in the Registration Statement, the Prospectus, any amendment or
supplement to such Registration Statement or Prospectus, as the case
may be, or any document incorporated by reference in such Registration
Statement or Prospectus untrue in any material respect, or that
requires the making of any additions to or changes in the Registration
Statement or the Prospectus in order to make the statements in such
Registration Statement or Prospectus 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. If at any
time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws,
the Issuer shall use its reasonable best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(iv) furnish to each of the underwriter(s), if any, and, in
the case of a Shelf Registration Statement, each of the selling Holders
before filing with the Commission, copies of any Registration Statement
or any Prospectus included in such Registration Statement or Prospectus
or any amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference after the
initial
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filing of such Registration Statement), which documents will be subject
to the reasonable review of such underwriter(s), if any, and such
Holders for a period of at least five Business Days in the case of a
Registration Statement or Prospectus and for a period of at least two
Business Days in the case of any amendment or supplement thereto, and
the Issuer will not file any such Registration Statement or Prospectus
or any amendment or supplement to any such Registration Statement or
Prospectus, as the case may be, (including all such documents
incorporated by reference) to which any underwriter, or selling Holder
shall reasonably object on a timely basis after the receipt of such
Registration Statement or Prospectus.
(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
(a) provide copies of such document to the selling Holders and to the
underwriter(s), if any, (b) make the Issuer's representatives available
for discussion of such document and other customary due diligence
matters; provided that such discussion and due diligence shall be
coordinated on behalf of the selling Holders by one counsel designated
by and on behalf of such selling Holders and (c) include such
information in such document prior to the filing of such document as
such selling Holders or underwriter(s), if any, may reasonably request;
(vi) make available at reasonable times for inspection by the
selling Holders, any underwriter participating in any disposition
pursuant to such Registration Statement and any attorney or accountant
retained by such selling Holders or any of the underwriter(s), if any,
at the offices where normally kept, during reasonable business hours,
all relevant financial and other records, pertinent corporate documents
and properties of the Issuer and cause the Issuer's officers, directors
and employees to supply all information reasonably requested by any
such Holder, underwriter, attorney or accountant in connection with
such Registration Statement subsequent to the filing thereof and prior
to its effectiveness; provided, however, that such persons shall first
agree in writing with the Issuer that any information that is
reasonably and in good faith designated by the Issuer in writing as
confidential at the time of delivery of such information shall be kept
confidential by such persons, unless and to the extent that (i)
disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory
authorities, (ii) disclosure of such information is required by law
(including any disclosure requirements pursuant to federal securities
laws in connection with the filing of the Shelf Registration Statement
or the use of any Prospectus), (iii) such information becomes generally
available to the public other than as a result of a disclosure or
failure to safeguard such information by such person or (iv) such
information becomes available to such person from a source other than
the Issuer and its Subsidiaries and such source is not bound by a
confidentiality agreement;
(vii) if requested by a majority of the Holders or the
underwriter(s), if any, promptly incorporate in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request and agree to have
included therein, including, without limitation, information relating
to the "Plan of Distribution" of the Transfer Restricted Securities,
information with respect to the principal amount of Transfer Restricted
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Securities being sold to such underwriter(s), the purchase price being
paid for Transfer Restricted Securities and any other terms of the
offering of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus supplement
or post-effective amendment as soon as practicable after the Issuer is
notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment; provided, however, that the
Issuer shall not be required to take any action pursuant to this
Section 6(c)(vii) that would, in the opinion of counsel for the Issuer,
violate applicable law;
(viii) furnish to each underwriter, if any, and upon request
to the Issuer to a selling Holder without charge, at least one
conformed copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including, upon the request
of such Person, all documents incorporated by reference therein and all
exhibits to the extent requested (including exhibits incorporated
therein by reference);
(ix) deliver to each selling Holder, and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons may reasonably request; the Issuer
hereby consents to the use of the Prospectus and any amendment or
supplement to the Prospectus by each of the selling Holders and each of
the underwriter(s), if any, in connection with the offering and the
sale of the Transfer Restricted Securities in accordance with the terms
thereof and with U.S. Federal securities laws and Blue Sky laws covered
by the Prospectus or any amendment or supplement thereto;
(x) enter into such agreements (including an underwriting
agreement in form, scope and substance as is customary in underwritten
offerings of securities of this type) and take all such other
reasonable actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities
pursuant to any Registration Statement contemplated by this Agreement,
all as may be reasonably requested by any Holder of Transfer Restricted
Securities or the underwriter(s), if any, in connection with any sale
or resale of Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement; and whether or
not an underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, the Issuer shall (i) make
such representations and warranties to the Holders of such Transfer
Restricted Securities and the underwriters, if any, with respect to the
business of the Issuer and its Subsidiaries (including with respect to
businesses or assets acquired or to be acquired by any of them), and
the Shelf Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each
case, in form, substance and scope as are customarily made by the
Issuer to underwriters in underwritten offerings, and confirm the same
if and when customarily requested; (ii) obtain opinions of counsel to
the Issuer and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the
underwriters, if any, and special counsel to the Holders of the
Transfer Restricted Securities being sold), addressed to each selling
Holder of Transfer Restricted Securities and each of the underwriters,
if any, covering the matters customarily covered in opinions requested
in underwritten offerings and such other matters as may be reasonably
requested by such underwriters, if any, and special counsel to
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Holders of Transfer Restricted Securities; (iii) use its reasonable
best efforts to obtain customary "cold comfort" letters and updates
thereof from the independent certified public accountants of the Issuer
(and, if necessary, any other independent certified public accountants
of any subsidiary of the Issuer or of any business acquired by the
Issuer or any such subsidiary for which financial statements and
financial data is, or is required to be, included in the Registration
Statement), addressed (where reasonably possible) to each selling
Holder of Transfer Restricted Securities and each of the underwriters,
if any, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection
with underwritten offerings; (iv) if an underwriting agreement is
entered into, the same shall contain indemnification provisions and
procedures no less favorable to the selling Holders and the
underwriters, if any, than those set forth in Section 8 hereof (or such
other provisions and procedures acceptable to the Holders of a majority
in aggregate principal amount of Transfer Restricted Securities covered
by such Shelf Registration Statement and the underwriters, if any); and
(v) deliver such documents and certificates as may be reasonably
requested by the Holders of a majority in aggregate principal amount of
the Transfer Restricted Securities being sold and the underwriters, if
any, to evidence the continued validity of the representations and
warranties made pursuant to clause (i) above and to evidence compliance
with any customary conditions contained in the underwriting agreement
or other agreement entered into by the Issuer;
If at any time the representations and warranties of the
Issuer contemplated in clause (x)(i) above cease to be true and
correct, the Issuer shall so advise the underwriter(s), if any, and
each selling Holder promptly and, if requested by any of them, shall
confirm such advice in writing;
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the registration
and qualification (or exemption from such registration or
qualification) of the Transfer Restricted Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
selling Holders and underwriter(s), if any, may reasonably request in
writing and do any and all other acts or things necessary or advisable
to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the Registration Statement; provided,
however, that the Issuer shall not be required to register or qualify
as a foreign corporation where it is not now so qualified or to take
any action that would subject it to the service of process or to
taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so
subject;
(xii) if a Shelf Registration is filed pursuant to Section
4(b), cooperate with the selling Holders of Registrable Securities and
the managing Underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted
Securities 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 Transfer Restricted
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Securities to be in such denominations and registered in such names as
the managing Underwriters, if any, or Holders may reasonably request;
(xiii) use its reasonable best efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers of such
Transfer Restricted Securities or the underwriter(s), if any, to
consummate the disposition of such Transfer Restricted Securities,
subject to the proviso contained in clause (xi) above, and except as
may be required as a consequence of the nature of such seller's
business, in which case the Issuer will cooperate in all reasonable
respects with the filing of such Registration Statement and the
granting of such approvals as may be necessary to enable the seller to
consummate the disposition of such Transfer Restricted Securities:
(xiv) if any fact or event contemplated by Section
6(c)(iii)(D) of this Agreement shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated in such Registration
Statement or Prospectus by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Registration Statement will not contain an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading and the
Prospectus will not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading;
(xv) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement and provide the Trustee under the Indenture with printed
certificates for the Transfer Restricted Securities that are in a form
eligible for deposit with The Depository Trust Company;
(xvi) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation
by any underwriter (including any "qualified independent underwriter"
that is required to be retained in accordance with the rules and
regulations of the NASD);
(xvii) otherwise use its reasonable best efforts to comply
with all applicable rules and regulations of the Commission in regards
to any Registration Statement, and make generally available to its
securityholders, as soon as practicable, a consolidated earning
statement of the Issuer meeting the requirements of Rule 158 (which
need not be audited) for the twelve-month period (A) commencing at the
end of any fiscal quarter in which Transfer Restricted Securities are
sold to underwriters in a firm commitment or reasonable best efforts
Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Issuer's first fiscal
quarter commencing after the effective date of the Registration
Statement; and
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(xviii) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate
with the Trustee and the Holders to effect such changes to the
Indenture, if any, 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 the Trustee to execute, all
customary documents that may be required to effect such changes and all
other forms and documents required to be filed with the Commission to
enable such Indenture to be so qualified in a timely manner.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Issuer of the existence of any fact of
the kind described in Section 6(c)(iii)(D) of this Agreement, such Holder will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the applicable Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 6(c)(xv) of
this Agreement, or until it is advised in writing (the "Advice") by the Issuer
that the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Issuer, each Holder will deliver to the Issuer
(at the Issuer's expense) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice. In the event
that the Issuer shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 of this
Agreement, as applicable, shall be extended by the number of days during the
period from and including the date of the giving of such notice pursuant to
Section 6(c)(iii)(D) of this Agreement to and including the date when each
selling Holder covered by such Registration Statement shall have received the
copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xv) of this Agreement or shall have received the Advice.
SECTION 7. REGISTRATION EXPENSES
All fees and expenses incident to the Issuer's performance of or
compliance with this Agreement will be borne by the Issuer regardless of whether
a Registration Statement becomes effective, including without limitation: (i)
all registration and filing fees and expenses (including filings made with the
NASD (and, if applicable, the fees and expenses of any "qualified independent
underwriter" and its counsel that may be required by the rules and regulations
of the NASD)); (ii) all fees and expenses of compliance with federal securities
and state Blue Sky or securities laws; (iii) all expenses of printing (including
printing certificates for the New Notes to be issued in the Exchange Offer and
printing of Prospectuses); (iv) all fees and disbursements of counsel for the
Issuer; and (v) all fees and disbursements of independent certified public
accountants of the Issuer (including the expenses of any special audit and
comfort letters required by or incident to such performance).
The Issuer will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by it and
all expenses of legal counsel.
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Notwithstanding the foregoing or anything in this Agreement to the
contrary, each Holder of Transfer Restricted Notes shall pay all underwriting
discounts and commissions of any underwriters with respect to any Notes sold by
or on behalf of it and all expenses of legal counsel.
SECTION 8. INDEMNIFICATION
(a) The Issuer agrees to indemnify and hold harmless (i) each Holder of
Transfer Restricted Securities and each Participating Broker Dealer, (ii) each
person, if any, who controls any of the foregoing within the meaning of Section
15 of the Act or Section 20 of the Exchange Act (any of the persons referred to
in this clause (ii) being hereinafter referred to as a "controlling person") and
(iii) its agents, employees, officers and directors and the agents, employees,
officers and directors of any such controlling person (collectively, the
"Indemnified Persons") from and against any and all losses, liabilities, claims,
damages and expenses whatsoever (including but not limited to reasonable
attorneys' fees and expenses) to which they or any of them may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein 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; provided, however,
that the Issuer will not be liable in any such case to the extent, but only to
the extent, that any such loss, liability, claim, damage or expense arises out
of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Issuer by or on behalf of any
Indemnified Person relating to such Indemnified Person expressly for use
therein. This indemnity agreement will be in addition to any liability that the
Issuer may otherwise have, including, but not limited to, liability under this
Agreement.
If any action is brought against any Indemnified Persons or any such
person in respect of which indemnity may be sought against the Issuer pursuant
to the foregoing paragraph, such Indemnified Persons or such person shall
promptly notify the indemnifying party in writing of the institution of such
action and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses, provided, however, except to the
extent that the indemnifying party shall be materially prejudiced thereby
(through the forfeiture of substantive rights or defenses), that the omission to
so notify the indemnifying party shall not relieve the indemnifying party from
any liability which they may have to the Indemnified Persons or any such person
or otherwise. Such Indemnified Persons shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Persons unless the employment of such counsel
shall have been authorized in writing by the indemnifying party in connection
with the defense of such action or the indemnifying party shall not have
employed counsel to have charge of the defense of such action or such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
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available to the indemnifying party (in which case the indemnifying party shall
not have the right to direct the defense of such action on behalf of the
indemnified party or parties, but such indemnifying party may employ counsel and
participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of such indemnifying party), in any of which events such
fees and expenses shall be borne by the indemnifying party and paid as incurred
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (together with appropriate
local counsel) in any one action or series of related actions in the same
jurisdiction representing the indemnified parties who are parties to such
action). Anything in this paragraph to the contrary notwithstanding, the
indemnifying party shall not be liable for any settlement of any such claim or
action effected without its written consent but if settled with the written
consent of the indemnifying party, the indemnifying party agrees to indemnify
and hold harmless any Indemnified Persons and any such person from and against
any loss or liability by reason of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding 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 an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(b) In connection with any Registration Statement pursuant to which a
Holder of Transfer Restricted Securities offers or sells Transfer Restricted
Securities, such Holder agrees, severally and not jointly, to indemnify and hold
harmless the Issuer, its directors and officers and any person controlling the
Issuer within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, and each of their agents, employees, officers and directors
from and against any losses, liabilities, claims, damages and expenses
whatsoever (including but not limited to reasonable attorneys' fees and
expenses) to which they or either of them may become subject under the Act, the
Exchange Act or otherwise insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
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, in each case to the extent, but only to the extent, that
any such loss, liability, claim, damage or expense arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information relating to such Holder furnished to the Issuer by such Holder
expressly for use in such Registration Statement.
If any action is brought against the Issuer or any such person in
respect of which indemnity may be sought against any Holder of Transfer
Restricted Securities pursuant to foregoing paragraph, the Issuer or such person
shall promptly notify such Holder in writing of the institution of such action
and such Holder shall assume the defense of such action, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses, provided, however, except to the extent that
the indemnifying party shall be materially prejudiced thereby (through the
forfeiture of substantive rights or defenses), that the omission to so notify
such Holder shall not relieve such Holder from any liability which it may have
to the Issuer or any such
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person or otherwise. The Issuer or such person shall have the right to employ
its own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of the Issuer or such person unless the employment of
such counsel shall have been authorized in writing by such Holder of Transfer
Restricted Securities in connection with the defense of such action or such
Holder shall not have employed counsel to have charge of the defense of such
action or such indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from or
additional to those available to such Holder (in which case such Holder shall
not have the right to direct the defense of such action on behalf of the
indemnified party or parties, but such Holder may employ counsel and participate
in the defense thereof but the fees and expenses of such counsel shall be at the
expense of such Holder), in any of which events such fees and expenses shall be
borne by such Holder and paid as incurred (it being understood, however, that
such Holder shall not be liable for the expenses of more than one separate
counsel (together with appropriate local counsel) in any one action or series of
related actions in the same jurisdiction representing the indemnified parties
who are parties to such action). Anything in this paragraph to the contrary
notwithstanding, any Holder of Transfer Restricted Securities shall not be
liable for any settlement of any such claim or action effected without the
written consent of such Holder but if settled with the written consent of such
Holder, such Holder agrees to indemnify and hold harmless the Issuer and any
such person from and against any loss or liability by reason of such settlement.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
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 an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(c) In order to provide for contribution in circumstances in which the
indemnification provided for in paragraphs (a) and (b) of this Section 8 is for
any reason held to be unavailable from the indemnifying party, or is
insufficient to hold harmless a party indemnified under this Section 8, the
Issuer and the Indemnified Parties shall contribute to the aggregate losses,
claims, damages, liabilities and expenses of the nature contemplated by such
indemnification provision (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action or
any claims asserted) to which the Issuer and the Indemnified Parties may be
subject, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuer, on the one hand, and the Indemnified Parties,
on the other hand, from the offering of the Old Notes or, (ii) if such
allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Issuer, on the one hand, and the
Indemnified Parties, on the other hand, in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Issuer, on the one hand, and the Indemnified Parties,
on the other hand, shall be deemed to be in the same proportion as the total
proceeds from the offering of Old Notes (net of discounts but before deducting
expenses) received by the Issuer as set forth in the table on the cover page of
the Offering Memorandum bear to the total proceeds received by such Holder with
respect to its sale of Transfer Restricted Securities or New Notes. The relative
fault of the Issuer, on the one hand, and the Indemnified Parties, on the other
hand, shall be determined by reference to, among other things,
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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 Issuer or the Indemnified Parties and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Issuer agrees, that it would not be just and equitable if
contribution pursuant to this paragraph (c) of this Section 8 were determined by
pro rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to above. Notwithstanding the
provisions of paragraph (c) of this Section 8, (i) in no case shall an
Indemnified Party be required to contribute any amount in excess of the amount
by which the total received by such Indemnified Party with respect to its sale
of its Transfer Restricted Securities or New Notes, as the case may be, exceeds
the amount of any damages that such Indemnified Party has otherwise been
required to pay by reason of any untrue or alleged untrue statement or omission
or alleged omission and (ii) 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 (c) of this Section 8, each
person, if any, who controls an Indemnified Party within the meaning of Section
15 of the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Indemnified Party, and each person, if any, who controls
the 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 Issuer, subject
to clauses (i) and (ii) of this paragraph. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any Action against
such party in respect of which a claim for contribution may be made against
another party or parties under this paragraph 8(c), notify such party or parties
from whom contribution may be sought, but, except to the extent that the
indemnifying party shall be materially prejudiced thereby (through the
forfeiture of substantive rights and defenses), the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this paragraph (c)
or otherwise. No party shall be liable for contribution with respect to any
action or claim settled without its written consent; provided, however, that
such written consent was not unreasonably withheld.
SECTION 9. RULE 144A
The Issuer shall use its reasonable best efforts, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale of such securities and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration under this
Agreement unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in
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any underwriting arrangements approved by the Persons entitled under this
Agreement to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorneys, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Issuer.
SECTION 12. MISCELLANEOUS
(a) Remedies. In the event of a breach by the Issuer, or by a Holder of
Transfer Restricted Securities, of any of their obligations under this
Agreement, each Holder of Transfer Restricted Securities or the Issuer, as the
case may be, in addition to being entitled to exercise all rights provided in
this Agreement, in the Indenture, or granted by law, including recovery of
liquidated or other damages, will be entitled to specific performance of its
rights under this Agreement. The Issuer and each Holder of Transfer Restricted
Securities agree that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive the defense in any Action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Issuer will not on or after the
date of this Agreement enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions of this Agreement. The rights granted to
the Holders under this Agreement do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the securities of the
Issuer under any agreement in effect on the date of this Agreement.
(c) 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 or departures from the provisions of this Agreement
may not be given unless the Issuer has obtained the written consent of Holders
of a majority of the outstanding principal amount of Transfer Restricted
Securities. Notwithstanding the foregoing, a waiver or consent to departure from
the provisions of this Agreement that relates exclusively to the rights of
Holders whose securities are being sold or tendered pursuant to a Registration
Statement and that does not affect directly or indirectly the rights of other
Holders whose securities are not being sold or tendered pursuant to such
Registration Statement may be given by the Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities being so sold or
tendered.
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(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivering, first-class
mail (registered or certified, return receipt requested), telex, telecopier or
air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to the
Registrar under the Indenture; and
(ii) if to the Issuer, at:
Xxxxx Pet Care Company
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxxxx & Xxxxxx L.L.P.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (212)
Attention: Xxxx Xxxxx
(iii) if to the Co-Dealer Managers at:
Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation
2900 Chase Tower
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxx
and
Chase Securities, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile:
Attention:
All such notices and communications shall be deemed to have been duly
given: (i) at the time delivered by hand, if personally delivered; (ii) five
Business Days after being deposited in the mail, postage prepaid, if mailed;
(iii) when answered back, if telexed; (iv) when receipt
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acknowledged, if telecopied; and (v) 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.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties to this Agreement 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) Captions. The captions included in this Agreement are included
solely for convenience of reference and are not to be considered a part of this
Agreement.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(i) Submission to Jurisdiction. The Issuer irrevocably submits to the
nonexclusive jurisdiction of any State or Federal court sitting in New York over
any suit, action or proceeding arising out of or relating to this agreement. The
Issuer irrevocably waives, to the fullest extent permitted by law, any objection
it may now or thereafter have to the laying of venue of any such court and any
claim that any such suit, action or proceeding brought in such a court has been
brought in an inconvenient forum. The Issuer agrees that a final judgment in any
such suit, action or proceeding brought in any such court shall be conclusive
and binding upon the Issuer and may be enforced in any other courts to the
jurisdiction of which the Issuer is or may be subject, by suit upon such
judgment. The Issuer hereby appoints, without power of revocation, [CT
Corporation System] as its agent to accept and acknowledge on its behalf service
of any and all process which may be served in any suit, action or proceeding
arising out of or relating to this letter.
(j) Severability. In the event that any one or more of the provisions
contained in this Agreement, or the application of any such provision 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 in this Agreement shall not be affected or
impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties to this Agreement in
respect of the subject matter contained in this Agreement. There are no
restrictions, promises, warranties or undertakings, other than those set
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23
forth or referred to in this Agreement with respect to the registration rights
granted by the Issuer with respect to the Transfer Restricted Securities. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
(l) Third Party Beneficiaries. The Issuer hereby agrees that the
Holders of Old Notes shall be third party beneficiaries of the terms of this
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
XXXXX PET CARE COMPANY
By: /s/ XXXXXX X. XXXXXXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
----------------------------------
Title: Senior Vice President and CFO
---------------------------------
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: /s XXXXXXX X. XXXX
------------------------------------
Name: Xxxxxxx X. Xxxx
----------------------------------
Title: Senior Vice President
---------------------------------
CHASE SECURITIES INC.
By: /s/ XXXXXX X. PURELL
------------------------------------
Name: Xxxxxx X. Purell
----------------------------------
Title: Vice President
---------------------------------
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