EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
by and among
Rayovac Corporation
and
The Guarantors listed on Schedule A hereto
and
Banc of America Securities LLC
Citigroup Global Markets Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
ABN AMRO Incorporated
Dated as of February 7, 2005
Registration Rights Agreement
This Registration Rights Agreement (this "Agreement") is made and
entered into as of February 7, 2005, by and among Rayovac Corporation, a
Wisconsin corporation (the "Company"), and the guarantors listed on Schedule A
hereto (the "Guarantors"), and Banc of America Securities LLC, Citigroup
Global Markets Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and
ABN AMRO Incorporated (each an "Initial Purchaser" and, collectively, the
"Initial Purchasers"), each of whom has agreed to purchase the Company's 7 3/8%
Senior Subordinated Notes due 2015 (the "Initial Notes") pursuant to the
Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated as
of January 21, 2005 (the "Purchase Agreement"), by and among the Company,
Rovcal, Inc. and ROV Holding, Inc. and the Initial Purchasers (i) for the
benefit of each Initial Purchaser and (ii) for the benefit of the holders from
time to time of the Initial Notes (including each Initial Purchaser). In order
to induce the Initial Purchasers to purchase the Initial Notes, the Company
has agreed to provide the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the obligations of
the Initial Purchasers set forth in Section 5(i) of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
Advice: As defined in the last paragraph of Section 6 hereof.
Agreement: As defined in the preamble.
Broker-Dealer: Any broker or dealer registered under the Exchange
Act.
Business Day: Any day except a Saturday, Sunday or other day that in
the City of New York, or in the city of the corporate trust office of the
Trustee, banks are authorized to close.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Company: As defined in the preamble hereto.
Consummate: An Exchange Offer shall be deemed "Consummated" or the
"Consummation" of which shall be deemed to have occurred for purposes of this
Agreement upon the occurrence of (i) the filing and effectiveness under the
Securities Act of the Exchange Offer Registration Statement relating to the
Exchange Notes to be issued in the Exchange Offer, (ii) the maintenance of
such Registration Statement continuously effective and the keeping of the
Exchange Offer open for a period not less than the minimum period required
pursuant to Section 3(b) hereof, and (iii) the delivery by the Company to the
Registrar under the Indenture of
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Exchange Notes in the same aggregate principal amount as the aggregate
principal amount of Initial Notes that were tendered by Holders thereof
pursuant to the Exchange Offer.
Controlling Person: As defined in Section 8(a) hereof.
Effectiveness Target Date: As defined in Section 5 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: The 7 3/8% Senior Subordinated Notes due 2015, of the
same series under the Indenture as the Initial Notes, to be issued to Holders
in exchange for Transfer Restricted Securities pursuant to this Agreement.
Exchange Offer: The registration by the Company under the Securities
Act of the Exchange Notes pursuant to a Registration Statement pursuant to
which the Company offers the Holders of all outstanding Transfer Restricted
Securities the opportunity to exchange all such outstanding Transfer
Restricted Securities held by such Holders for Exchange Notes in an aggregate
principal amount equal to the aggregate principal amount of the 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.
Guarantors: As defined in the preamble.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of February 7, 2005, among the
Company, the Guarantors and U.S. Bank, National Association, 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 the terms
thereof.
Initial Notes: As defined in the preamble hereto.
Initial Placement: The issuance and sale by the Company of the
Initial Notes to the Initial Purchasers pursuant to the Purchase Agreement.
Initial Purchaser: As defined in the preamble hereto.
Liquidated Damages: As defined in Section 5 hereof.
NASD: National Association of Securities Dealers, Inc.
Notes: The Initial Notes and the Exchange Notes.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
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Prospectus: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
Purchase Agreement: As defined in the preamble.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company
relating to (a) an offering of Exchange Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, in each case, (i) which is filed pursuant to
the provisions of this Agreement, (ii) all amendments and supplements thereto
(including post-effective amendments) and all exhibits and material
incorporated by reference therein and (iii) the Prospectus included therein.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Suspension Notice: As defined in the last paragraph of Section 6
hereof.
Transfer Restricted Securities: Each Initial Note, until the earliest
to occur of (a) the date on which such Initial Note is exchanged in the
Exchange Offer and entitled to be resold to the public by the Holder thereof
without complying with the prospectus delivery requirements of the Securities
Act, (b) following the exchange by a broker-dealer in the Exchange Offer of an
Initial Note for an Exchange Note, the date on which such Exchange Note is
sold to a purchaser who receives from such Broker-Dealer on or prior to the
date of such sale a copy of the prospectus contained in the Exchange Offer
Registration Statement, (c) the date on which such Initial Note has been
effectively registered under the Securities Act and disposed of in accordance
with a Shelf Registration Statement and (d) the date on which such Initial
Note is distributed to the public pursuant to Rule 144 under the Securities
Act.
Trustee: As defined in the definition of the Indenture herein.
Trust Indenture Act: The Trust Indenture Act of 1939 (15 U.S.C.
Section 77aaa 77bbbb) as in effect on the date of the Indenture.
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to
the public.
SECTION 2. Securities Subject to this Agreement.
(a) Transfer Restricted Securities. The securities subject to the
benefits of this Agreement are the Transfer Restricted Securities.
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(b) Holders of Transfer Restricted Securities. A Person is deemed to
be a holder of Transfer Restricted Securities (each, a "Holder") whenever such
Person owns Transfer Restricted Securities.
SECTION 3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permissible under
applicable law or Commission policy (after the procedures set forth in Section
6(a) below have been complied with), the Company and the Guarantors shall (i)
cause the Exchange Offer Registration Statement to be filed with the
Commission as soon as reasonably practicable after the Closing Date, but in no
event later than 120 days after the Closing Date, (ii) use their commercially
reasonable efforts to cause the Exchange Offer Registration Statement to
become effective as soon as reasonably practicable, but in no event later than
240 days, after the Closing Date, (iii) in connection with the foregoing, use
their commercially reasonable efforts to file (A) all pre-effective amendments
to such Registration Statement as may be necessary in order to cause such
Exchange Offer Registration Statement to become effective, (B) if applicable,
a post-effective amendment to such Exchange Offer Registration Statement
pursuant to Rule 430A under the Securities Act and (C) cause all necessary
filings in connection with the registration and qualification of the Exchange
Notes 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 Company and the Guarantors shall not be required to qualify as a
foreign corporation or to take any action that would subject it to general
service of process in any such jurisdiction where it is not presently
qualified or where it would be subject to taxation as a foreign corporation)
and (iv) upon the effectiveness of such Exchange Offer Registration Statement,
commence the Exchange Offer. The Exchange Offer shall be on the appropriate
form permitting registration of the Exchange Notes to be offered in exchange
for the Transfer Restricted Securities and to permit resales of Transfer
Restricted Securities held by Broker-Dealers as contemplated by Section 3(c)
below.
(b) The Company and the Guarantors shall use their commercially
reasonable efforts to cause the Exchange Offer Registration Statement to be
effective continuously and shall keep the Exchange Offer open for a period of
not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in
no event shall such period be less than 30 days after the date notice of the
Exchange Offer is mailed to the Holders. The Company and the Guarantors shall
cause the Exchange Offer to comply with all applicable federal and state
securities laws. No securities other than the Exchange Notes shall be included
in the Exchange Offer Registration Statement. The Company and the Guarantors
shall use their commercially reasonable efforts to cause the Exchange Offer to
be Consummated as soon as reasonably practicable after the Exchange Offer
Registration Statement has become effective, but in no event later than 30
Business Days after the Exchange Offer Registration Statement has become
effective.
(c) The Company and the Guarantors shall indicate in a "Plan of
Distribution" section contained in the Prospectus forming a part of the
Exchange Offer Registration Statement that any Broker-Dealer who holds Initial
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 Company), may exchange
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such Initial Notes pursuant to the Exchange Offer, and in light of that, such
Broker-Dealer may be deemed to be an "underwriter" within the meaning of the
Securities Act and must, therefore, deliver a prospectus meeting the
requirements of the Securities Act in connection with any resales of the
Exchange Notes received by such Broker-Dealer in the Exchange Offer, which
prospectus delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer Registration
Statement. Such "Plan of Distribution" section shall also contain all other
information with respect to such resales by Broker-Dealers that the Commission
may require in order 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 as a result of a change in policy, rules or regulations after the
date of this Agreement.
The Company and the Guarantors shall use their commercially
reasonable 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 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 Securities Act
and the policies, rules and regulations of the Commission as announced from
time to time, for a period ending on the earlier of (i) 180 days from the date
on which the Exchange Offer Registration Statement is declared effective and
(ii) the date on which a Broker-Dealer is no longer required to deliver a
prospectus in connection with market-making or other trading activities.
The Company and the Guarantors shall provide sufficient copies of the
latest version of such Prospectus to Broker-Dealers promptly upon request at
any time during such 180-day (or shorter as provided in the foregoing
sentence) period in order to facilitate such resales.
SECTION 4. Shelf Registration.
(a) Shelf Registration. If (i) the Company and the Guarantors are 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 Commission policy (after the procedures set forth in Section 6(a) below
have been complied with) or (ii) any Holder of Transfer Restricted Securities
shall notify the Company in writing prior to the 20th day following the
Consummation of the Exchange Offer that (A) such Holder is prohibited by
applicable law or Commission policy from participating in the Exchange Offer,
(B) such Holder may not resell the Exchange Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and that the
Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder or (C) such Holder is
a Broker-Dealer and holds Initial Notes acquired directly from the Company or
one of its affiliates, then the Company and the Guarantors shall:
(x) use their commercially reasonable efforts to cause to be
filed a shelf registration statement pursuant to Rule 415 under the
Securities Act, which may be an amendment to the Exchange Offer
Registration Statement (in either event, the "Shelf Registration
Statement"), on or prior to the earliest to occur of (1) the 60th day
after the date on which the Company determines that it not required
to file the Exchange Offer
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Registration Statement pursuant to clause (a)(i) above and (2) the
60th day after the date on which the Company receives notice from a
Holder of Transfer Restricted Securities as contemplated by clause
(a)(ii) above (such earliest date being the "Shelf Filing Deadline"),
which Shelf Registration Statement shall provide for the resale of
all Transfer Restricted Securities the Holders of which shall have
provided the information required pursuant to Section 4(b) hereof;
and
(y) use their commercially reasonable efforts to cause such
Shelf Registration Statement to be declared effective by the
Commission on or before the 120th day after the Shelf Filing
Deadline.
The Company and the Guarantors shall use their commercially
reasonable efforts to keep such Shelf Registration Statement continuously
effective, supplemented and amended as required by and subject to the
provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure
that it is available for resales of Transfer Restricted Securities by the
Holders thereof entitled to the benefit of this Section 4(a), and to ensure
that it conforms with the requirements of this Agreement, the Securities Act
and the policies, rules and regulations of the Commission as announced from
time to time, for a period of at least two years following the date of
effectiveness of the Shelf Registration Statement (or, if earlier, until the
date when all Transfer Restricted Securities covered by such 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 Company in writing, within 20 Business Days after receipt of
a request therefor, such information as the Company may reasonably request for
use in connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. Each Holder as to which any Shelf
Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not misleading.
SECTION 5. Liquidated Damages. If (i) any of the Registration
Statements required by this Agreement is not filed with the Commission on or
prior to the date specified for such filing in this Agreement, (ii) any of
such Registration Statements has not been declared effective by the Commission
on or prior to the date specified for such effectiveness in this Agreement
(the "Effectiveness Target Date"), (iii) the Exchange Offer has not been
Consummated within 30 Business Days after the Effectiveness Target Date with
respect to the Exchange Offer Registration Statement or (iv) subject to
Section 6(c)(i), any Registration Statement required by this Agreement is
filed and declared effective but shall thereafter cease to be effective prior
to the time periods set forth in this Agreement or fail to be usable for its
intended purpose without being succeeded immediately by a post-effective
amendment to such Registration Statement that cures such failure and that is
itself immediately declared effective (each such event referred to in clauses
(i) through (iv), a "Registration Default"), the Company hereby agrees that
the interest rate borne by the Transfer Restricted Securities shall be
increased by 0.25% per annum during the 90-day period immediately following
the occurrence of any Registration Default and shall increase by an additional
0.25% per annum at the end of each subsequent 90-day period, but in
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no event shall such increase exceed 1.00% per annum; provided that the Company
and the Guarantors shall in no event be required to pay such additional
interest for more than one Registration Default at any given time. Such
additional interest to be paid pursuant to a Registration Default is herein
referred to as "Liquidated Damages." Following the cure of any Registration
Default relating to any particular Transfer Restricted Securities, the
interest rate borne by the relevant Transfer Restricted Securities will be
reduced to the original interest rate borne by such Transfer Restricted
Securities; provided, however, that, if after any such reduction in interest
rate, a different Registration Default exists or occurs, the interest rate
borne by the relevant Transfer Restricted Securities shall again be increased
pursuant to the foregoing provisions unless and until the different
Registration Default has been cured.
All Liquidated Damages accrued pursuant to this Section 5 shall be
paid to the Holders entitled thereto, in the manner provided for the payment
of interest in the Indenture, on each Interest Payment Date, as more fully set
forth in the Indenture and the Notes. All obligations of the Company and the
Guarantors 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 Note shall have been satisfied in full.
SECTION 6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company and the Guarantors shall comply with all of the
provisions of Section 6(c) below, shall use their commercially reasonable
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 the Company, the Guarantors and the Holders of the
Notes, as applicable, shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the Company there
is a serious question as to whether the Exchange Offer is permitted
by applicable law, the Company and the Guarantors hereby agree to use
their commercially reasonable efforts to seek a no-action letter or
other favorable decision from the Commission allowing the Company and
the Guarantors to Consummate an Exchange Offer for such Initial
Notes. The Company and the Guarantors hereby agree to use their
commercially reasonable efforts to pursue the issuance of such a
decision to the Commission staff level, but shall not be required to
take commercially unreasonable action to effect a change of
Commission policy or otherwise obtain such no-action letter or other
favorable decision. The Company and the Guarantors hereby agree,
however, to (A) participate in telephonic conferences with the
Commission, (B) deliver to the Commission staff an analysis prepared
by counsel to the Company and the Guarantors setting forth the legal
bases, if any, upon which such counsel has concluded that such an
Exchange Offer should be permitted and (C) diligently pursue a
resolution (which need not be favorable) by the Commission staff of
such submission.
(ii) 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 Company,
prior to the Consummation thereof, a written representation
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to the Company and the Guarantors (which may be contained in the
letter of transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) it is not an affiliate of the
Company or the Guarantors, (B) it is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with any
Person to participate in, a distribution of the Exchange Notes to be
issued in the Exchange Offer and (C) it is acquiring the Exchange
Notes in its ordinary course of business. In addition, all such
Holders of Transfer Restricted Securities shall otherwise cooperate
in the Company's preparations for the Exchange Offer. Each Holder
hereby acknowledges and agrees that any Broker-Dealer and any such
Holder using the Exchange Offer to participate in a distribution of
the securities to be acquired in the Exchange Offer (1) could not
under Commission policy as in effect on the date of this Agreement
rely on the position of the Commission enunciated in Xxxxxx Xxxxxxx
and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters (which may include any no-action letter
obtained pursuant to clause (i) above), and (2) must comply with the
registration and prospectus delivery requirements of the Securities
Act in connection with a secondary resale transaction and that such a
secondary resale transaction must be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K of the Securities Act if the resales are of Exchange Notes
obtained by such Holder in exchange for Initial Notes acquired by
such Holder directly from the Company.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Guarantors shall comply with all
the provisions of Section 6(c) below and shall use their commercially
reasonable 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 thereof, and pursuant thereto the Company
and the Guarantors will as soon as reasonably practicable prepare and file
with the Commission a Registration Statement relating to the registration on
any appropriate form under the Securities Act, which form shall be available
for the sale of the Transfer Restricted Securities in accordance with the
intended method or methods of distribution thereof.
(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 required to permit resales
of Transfer Restricted Securities by Broker-Dealers), the Company and the
Guarantors shall:
(i) use their commercially reasonable efforts to keep such
Registration Statement continuously effective and provide all
requisite financial statements (including, if required by the
Securities Act or any regulation thereunder, financial statements of
the Guarantors) for the period specified in Section 3 or 4 of this
Agreement, as applicable; 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 Company
and the Guarantors shall file promptly
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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), use their commercially
reasonable efforts to cause such amendment to be declared effective
as soon as practicable thereafter. Notwithstanding the foregoing, if
the Board of Directors of the Company determines in good faith that
it is in the best interests of the Company and the Guarantors not to
disclose the existence of or facts surrounding any proposed or
pending material corporate transaction or other material development
involving the Company or the Guarantors, the Company and the
Guarantors may allow any Shelf Registration Statement to fail to be
effective or the Prospectus contained therein to be unusable as a
result of such nondisclosure for up to 90 days in any year during the
two-year period of effectiveness required by Section 4 hereof;
(ii) use their commercially reasonable efforts to prepare and
file with the Commission such amendments and post-effective
amendments to the Registration Statement as may be necessary to keep
the Registration Statement effective for the applicable period set
forth in Section 3 or 4 hereof, 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 Securities
Act, and to comply fully with the applicable provisions of Rules 424
and 430A under the Securities Act in a timely manner; and comply with
the provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods
of distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and 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
thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the
Securities 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 or (D) of the existence
of any fact or the happening of any event that makes any statement of
a material fact made in the Registration Statement, the Prospectus,
any amendment or supplement thereto, or any document incorporated by
reference therein untrue, or that requires the making of any
additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein, in light of the
circumstances in 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,
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the Company and the Guarantors shall use their commercially
reasonable efforts to obtain the withdrawal or lifting of such order
at the earliest possible time;
(iv) furnish without charge to each of the Initial Purchasers,
each selling Holder named in any Registration Statement, and each of
the underwriter(s), if any, before filing with the Commission, copies
of any Registration Statement or any Prospectus included therein or
any amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference after
the initial filing of such Registration Statement), which documents
will be subject to the review of such Holders and underwriter(s) in
connection with such sale, if any, and the Company and any Guarantors
will not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or
Prospectus (including all such documents incorporated by reference)
to which an Initial Purchaser of Transfer Restricted Securities
covered by such Registration Statement or the underwriter(s), if any,
shall reasonably object in writing, with respect to any such
documents, other than a Current Report on Form 8-K, within five
Business Days, and with respect to any Current Report on Form 8-K,
within 24 hours, in each case, after the receipt thereof (any such
objection to be deemed timely made upon confirmation of telecopy
transmission within such period). The objection of an Initial
Purchaser or underwriter, if any, shall be deemed to be reasonable if
such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement
or omission;
(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or
Prospectus, provide copies of such document to the Initial
Purchasers, each selling Holder named in any Registration Statement,
and to the underwriter(s), if any, make the Company's representatives
available and representatives of the Guarantors available for
discussion of such document and other customary due diligence
matters, and include such information in such document prior to the
filing thereof as such selling Holders or underwriter(s), if any,
reasonably may request;
(vi) make available at reasonable business hours in the offices
where such records are normally maintained for inspection by the
Initial Purchasers, any managing underwriter participating in any
disposition pursuant to such Registration Statement and any attorney
or accountant retained by such Initial Purchasers or any of the
underwriter(s), all relevant financial and other records, pertinent
corporate documents and documents relating to relevant properties of
the Company and the Guarantors subject to appropriate confidentiality
agreements and cause the Company's and the Guarantors' officers,
directors and employees to supply all information that is (a)
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 and (b)
customarily furnished in transactions of the type contemplated by
such Registration Statement;
(vii) if requested by any selling Holders or the underwriter(s),
if any, promptly incorporate in any Registration Statement or
Prospectus, pursuant to a supplement or
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post-effective amendment if necessary, such information as such
selling Holders and underwriter(s), if any, may reasonably request 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 Securities being sold to such underwriter(s), the
purchase price being paid therefor 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 reasonably practicable after
the Company is notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of
each amendment thereto, including financial statements and schedules,
all documents incorporated by reference therein and all exhibits
(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 reasonably may request; the
Company and the Guarantors hereby consent to the use (in accordance
with law) of the Prospectus and any amendment or supplement thereto
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 covered by the Prospectus or any amendment or
supplement thereto;
(x) enter into, and cause the Guarantors to enter into, such
agreements (including an underwriting agreement containing customary
terms), and make, and cause the Guarantors to make, such
representations and warranties, and take all such other actions in
connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement, all to such
extent as may be reasonably requested by any Initial Purchaser or by
any Holder of Transfer Restricted Securities or underwriter in
connection with any sale or resale pursuant to any Registration
Statement contemplated by this Agreement;
(xi) in the case of a Shelf Registration Statement, the Company
and the Guarantors shall:
(A) furnish (or in the case of paragraph (2) and (3)
below, use their commercially reasonable efforts to cause to be
furnished) to each Initial Purchaser, each selling Holder and
each underwriter, if any, in such substance and scope as are
customarily made, in the case of an Underwritten Offering, by
issuers to underwriters in primary underwritten offerings, upon
the date of effectiveness of the Shelf Registration Statement
and in the case of an Underwritten Offering, upon the date of
the underwriting agreement (except in the case of paragraphs (1)
and (2)) and the date of closing:
11
(1) a certificate, signed by (y) the President or
any Vice President and (z) a principal financial or
accounting officer of each of the Company and the
Guarantors, confirming, as of the date thereof, the
matters, to the extent applicable, set forth in paragraphs
(i), (ii) and (iii) of Section 5(f) of the Purchase
Agreement;
(2) an opinion, of counsel for the Company and the
Guarantors, covering the matters in the opinions delivered
pursuant to Section 5(c) of the Purchase Agreement and in
any event including a statement to the effect that such
counsel has participated in conferences with officers and
other representatives of the Company and the Guarantors,
representatives of the independent public accountants for
the Company and the Guarantors, the Initial Purchasers'
representatives and the Initial Purchasers' counsel in
connection with the preparation of such Shelf Registration
Statement and the related Prospectus and have considered
the matters required to be stated therein and the
statements contained therein, although such counsel has
not independently verified the accuracy, completeness or
fairness of such statements; and that such counsel advises
that, on the basis of the foregoing (relying as to
materiality to the extent such counsel deems appropriate
upon the statements of officers and other representatives
of the Company and the Guarantors and without independent
check or verification), no facts came to such counsel's
attention that caused such counsel to believe that the
applicable Shelf Registration Statement, at the time such
Shelf Registration Statement or any post-effective
amendment thereto became effective, and in the case of an
Underwritten Offering, at the date of the underwriting
agreement, contained an untrue statement of a material
fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein
not misleading, or that the Prospectus contained in such
Shelf Registration Statement as of its date and in the
case of an Underwritten Offering, at the date of the
underwriting agreement and the date of closing contained
an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements
therein, in light of the circumstances under which they
were made, not misleading. Without limiting the foregoing,
such counsel may state further that such counsel assumes
no responsibility for, and has not independently verified,
the accuracy, completeness or fairness of the financial
statements, notes and schedules and other financial data
included in any Shelf Registration Statement contemplated
by this Agreement or the related Prospectus; and
(3) a customary comfort letter, from (i) the
Company's independent accountants and (ii) the independent
accountants of any other Person for which financial
statements are included in or incorporated by reference
into any Shelf Registration Statement contemplated by this
Agreement or the related Prospectus, in the
12
customary form and covering matters of the type
customarily covered in comfort letters to underwriters in
connection with primary underwritten offerings, and
affirming the matters set forth in the comfort letters
delivered pursuant to Section 5(a) of the Purchase
Agreement, without exception;
(B) in the case of an Underwritten Offering, set forth in
full or incorporate by reference in the underwriting agreement,
if any, the indemnification provisions and procedures of Section
8 hereof with respect to all parties to be indemnified pursuant
to said Section; and
(C) in the case of an Underwritten Offering, deliver such
other documents and certificates as may be reasonably requested
by such parties to evidence compliance with clause (A) above and
with any customary conditions contained in the underwriting
agreement or other customary agreement entered into by the
Company or the Guarantors pursuant to clause (x).
If at any time the representations and warranties of the Company
and the Guarantors contemplated in clause (A)(1) above cease to be
true and correct, the Company shall so advise the Initial Purchasers
and the underwriter(s), if any, and each selling Holder promptly and,
if requested by such Persons, shall confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with, and cause the Guarantors to cooperate
with, the selling Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the selling
Holders or underwriter(s) may request and do any and all other acts
or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
Shelf Registration Statement; provided, however, that neither the
Company nor any Guarantor shall be required to register or qualify as
a foreign corporation where it is not then so qualified or to take
any action that would subject it to the service of process in suits
or to taxation, other than as to matters and transactions relating to
the Registration Statement, in any jurisdiction where it is not then
so subject;
(xiii) issue, upon the request of any Holder of Initial Notes
covered by the Shelf Registration Statement, Exchange Notes, having
an aggregate principal amount equal to the aggregate principal amount
of Initial Notes surrendered to the Company by such Holder in
exchange therefor or being sold by such Holder; such Exchange Notes
to be registered in the name of such Holder or in the name of the
purchaser(s) of such Notes, as the case may be; in return, the
Initial Notes held by such Holder shall be surrendered to the Company
for cancellation;
(xiv) cooperate with, and cause the Guarantors to cooperate
with, the selling Holders and the underwriter(s), if any, to
facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not
bearing any
13
restrictive legends; and enable such Transfer Restricted Securities
to be in such denominations and registered in such names as the
Holders or the underwriter(s), if any, may request at least two
Business Days prior to any sale of Transfer Restricted Securities
made by such underwriter(s);
(xv) use their commercially reasonable 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
thereof or the underwriter(s), if any, to consummate the disposition
of such Transfer Restricted Securities, subject to the proviso
contained in clause (xii) above;
(xvi) subject to Section 6(c)(i), if any fact or event
contemplated by clause (c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading;
(xvii) 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 which are in a
form eligible for deposit with the Depositary Trust Company;
(xviii) in the case of an Underwritten Offering, 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, and use their reasonable best efforts to cause such
Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to enable
the Holders selling Transfer Restricted Securities to consummate the
disposition of such Transfer Restricted Securities;
(xix) otherwise use their commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission,
and make generally available to its security holders, as soon as
reasonably practicable, a consolidated earnings statement meeting the
requirements of Rule 158 under the Securities Act (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 or best efforts Underwritten Offering or (B)
if not sold to underwriters in such an offering, beginning with the
first month of the Company's first fiscal quarter commencing after
the effective date of the Registration Statement;
(xx) cause the Indenture to be qualified under the Trust
Indenture Act not later than the effective date of the first
Registration Statement required by this Agreement, and, in connection
therewith, cooperate, and cause the Guarantors to cooperate with, the
Trustee and the Holders of Notes to effect such changes to the
Indenture as may be
14
required for such Indenture to be so qualified in accordance with the
terms of the Trust Indenture Act; and to execute, and cause the
Guarantors to execute, and use their commercially reasonable efforts
to cause the Trustee to execute, all documents that may be required
to effect such changes and all other forms and documents required to
be filed with the Commission to enable such Indenture to be so
qualified in a timely manner;
(xxi) cause all Transfer Restricted Securities covered by the
Registration Statement to be listed on each securities exchange on
which securities of the same class issued by the Company and the
Guarantors are then listed if requested by the Holders of a majority
in aggregate principal amount of Initial Notes or the managing
underwriter(s), if any; and
(xxii) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice referred to in Section 6(c)(iii)(C) or any
notice from the Company of the existence of any fact of the kind described in
Section 6(c)(iii)(D) hereof (in each case, a "Suspension Notice"), 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)(xvi) hereof, or until it is advised in writing (the "Advice") by
the Company that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated by
reference in the Prospectus. Each Holder receiving a Suspension Notice hereby
agrees that it will either (i) destroy any Prospectuses, other than permanent
file copies, then in such Holder's possession which have been replaced by the
Company with more recently dated Prospectuses or (ii) if so directed by the
Company, deliver to the Company (at the Company's expense) all copies, other
than permanent file copies then in such Holder's possession, of the Prospectus
covering such Transfer Restricted Securities that was current at the time of
receipt of such Suspension Notice. In the event the Company shall give any
such notice, the time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended
by the number of days in the period from and including the date of the
delivery of the Suspension Notice 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)(xvi)
hereof or shall have received the Advice; however, no such extension shall be
taken into account in determining whether Liquidated Damages are due pursuant
to Section 5 hereof or the amount of such Liquidated Damages, it being agreed
that the Company's option to suspend use of a Registration Statement pursuant
to this paragraph shall be treated as a Registration Default for purposes of
Section 5.
SECTION 7. Registration Expenses.
(a) All expenses incident to the Company's or the Guarantors'
performance of or compliance with this Agreement will be borne by the Company
or the Guarantors, regardless of whether a Registration Statement becomes
effective, including without limitation: (i) all registration and filing fees
and expenses (including filings made by any Initial Purchaser or
15
Holder 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
Exchange Notes to be issued in the Exchange Offer and printing of
Prospectuses), messenger and delivery services and telephone; (iv) all fees
and disbursements of counsel for the Company, the Guarantors and, subject to
Section 7(b) below, the Holders of Transfer Restricted Securities; (v) all
application and filing fees in connection with listing the Exchange Notes on a
national securities exchange or automated quotation system pursuant to the
requirements thereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company, the Guarantors or other Person
(including the expenses of any special audit and comfort letters required by
or incident to such performance).
The Company and the Guarantors will, in any event, bear their
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the
expenses of any annual audit and the fees and expenses of any Person,
including special experts, retained by the Company and the Guarantors.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement, if any), the Company and the
Guarantors will reimburse the Initial Purchasers and the Holders of Transfer
Restricted Securities being tendered in the Exchange Offer and/or resold
pursuant to the "Plan of Distribution" contained in the Exchange Offer
Registration Statement or registered pursuant to the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements of not
more than one counsel, who shall be Shearman & Sterling LLP or such other
counsel as may be chosen by the Holders of a majority in principal amount of
the Transfer Restricted Securities for whose benefit such Registration
Statement is being prepared.
SECTION 8. Indemnification.
(a) The Company agrees and the Guarantors, jointly and severally,
agree to indemnify and hold harmless (i) each Holder and (ii) each Person, if
any, who controls (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) any Holder (any of the Persons referred to in
this clause (ii) being hereinafter referred to as a "Controlling Person") and
(iii) the respective officers, directors, partners, employees, representatives
and agents of any Holder or any Controlling Person (any person referred to in
clause (i), (ii) or (iii) may hereinafter be referred to as an "Indemnified
Holder"), to the fullest extent lawful, from and against any and all losses,
claims, damages, liabilities or expenses (including without limitation,
reimbursement of all costs reasonably incurred in investigating, preparing,
pursuing, settling, compromising, paying or defending any claim or action, or
any investigation or proceeding by any governmental agency or body, commenced
or threatened, including the reasonable fees and expenses of counsel to any
Indemnified Holder), caused by, related to, based upon, arising out of or in
connection with any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus (or any amendment
or supplement thereto), or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses are caused by, based upon, arising out of or
in connection with
16
an untrue statement or omission or alleged untrue statement or omission that
is made in reliance upon and in conformity with information relating to any
Indemnified Holder furnished in writing to the Company by any of the Holders,
or on their behalf, expressly for use therein. This indemnity agreement shall
be in addition to any liability which the Company may otherwise have.
In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought against any of the
Indemnified Holders with respect to which indemnity may be sought against the
Company or the Guarantors, such Indemnified Holder (or the Indemnified Holder
controlled by such Controlling Person) shall promptly notify the Company and
the Guarantors in writing (provided, that the failure to give such notice
shall not relieve the Company or the Guarantors of their respective
obligations pursuant to this Agreement unless prejudiced thereby). In case any
such action is brought against any Indemnified Holder and such Indemnified
Holder seeks or intends to seek indemnity from the Company and the Guarantors,
the Company and the Guarantors will be entitled to participate in and, to the
extent that they shall elect by written notice delivered to the Indemnified
Holder promptly after receiving the aforesaid notice from such Indemnified
Holder, to assume the defense thereof with counsel reasonably satisfactory to
such Indemnified Holder; provided, however, if the defendants in any such
action include both the Indemnified Holder and the Company or any Guarantor
and the Indemnified Holder shall have reasonably concluded that a conflict may
arise between the positions of the Company or any Guarantor and the
Indemnified Holder in conducting the defense of any such action or that there
may be legal defenses available to it which are different from or additional
to those available to the Company or any Guarantor, the Indemnified Holder
shall have the right to select separate counsel to assume such legal defenses
and to otherwise participate in the defense of such action on behalf of
itself. Upon receipt of notice from the Company or any Guarantor to such
Indemnified Holder of the Company or any Guarantor's election so to assume the
defense of such action and approval by the Indemnified Holder of counsel, the
Company or any Guarantor will not be liable to such Indemnified Holder under
this Section 8 for any legal or other expenses subsequently incurred by such
Indemnified Holder in connection with the defense thereof unless (i) the
Indemnified Holder shall have employed separate counsel in accordance with the
proviso to the second sentence of this paragraph (it being understood,
however, that the Company or any Guarantor shall not be liable for the
expenses of more than one separate counsel (together with local counsel,
approved by the Company or any Guarantor, representing the Indemnified Holder
who is a party to such action) or (ii) the Company or any Guarantor shall not
have employed counsel reasonably satisfactory to the Indemnified Holder to
represent the Indemnified Holder within a reasonable time after notice of
commencement of the action, in each of which cases the fees and expenses of
counsel shall be at the expense of the Company and the Guarantor.
The Company and the Guarantors shall be liable for any settlement of
any such action or proceeding effected with the Company's prior written
consent, which consent shall not be withheld unreasonably, and the Company and
the Guarantors agree to indemnify and hold harmless any Indemnified Holder
from and against any loss, claim, damage, liability or expense by reason of
any settlement of any action effected with the written consent of the Company.
The Company and the Guarantors shall not, without the prior written consent of
each Indemnified Holder, settle or compromise or consent to the entry of
judgment in or otherwise seek to terminate any pending or threatened action,
claim, litigation or proceeding in respect of which
17
indemnification or contribution may be sought hereunder (whether or not any
Indemnified Holder is a party thereto), unless such settlement, compromise,
consent or termination (i) includes an unconditional release of each
Indemnified Holder from all liability arising out of such action, claim,
litigation or proceeding and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of the
Indemnified Holder.
(b) Each Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless the Company and the Guarantors
and their respective directors, officers, and each person controlling (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) the Company, the Guarantors and the respective officers, directors,
partners, employees, representatives and agents of each such person, to the
same extent as the indemnity from the Company and the Guarantors to each of
the Indemnified Holders set forth in Section 8(a), but only with respect to
claims and actions based on information relating to such Holder furnished in
writing by such Holder, or on their behalf, expressly for use in any
Registration Statement. In case any action or proceeding shall be brought
against the Company, the Guarantors or their directors or officers or any such
Controlling Person in respect of which indemnity may be sought against a
Holder of Transfer Restricted Securities, such Holder shall have the rights
and duties given the Company and/or the Guarantors and the Company, the
Guarantors or their directors or officers or such Controlling Person shall
have the rights and duties given to each Holder by Section 8(a).
(c) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under Section 8(a) or Section 8(b) (other
than by reason of exceptions provided in those Sections) in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities or expenses in
such proportion as is appropriate to reflect the relative benefits received by
the Company and the Guarantors, on the one hand, and the Holders, on the other
hand, from the Initial Placement (which in the case of the Company and the
Guarantors shall be deemed to be equal to the total gross proceeds from the
Initial Placement as set forth on the cover page of the Offering Memorandum,
less any discount received by the Initial Purchasers in the Initial
Placement), the amount of Liquidated Damages which does not become payable as
a result of the filing of the Registration Statement resulting in such losses,
claims, damages, liabilities or expenses, and such Registration Statement, or
if such allocation is not permitted by applicable law, the relative fault of
the Company and the Guarantors on the one hand, and of the Indemnified Holder,
on the other hand, in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative fault of the Company
on the one hand and of the Indemnified Holder on the other shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Indemnified Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in the second paragraph of
Section 8(a), any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim.
18
The Company, the Guarantors and each Holder of Transfer Restricted
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 8(c) were determined by pro rata allocation (even if
the Holders were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or expenses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the other provisions of this Section 8, no Holder (and its
related Indemnified Holders) shall be liable, in the aggregate, for any amount
in excess of the discount granted or the commission paid by the Company as set
forth in the Purchase Agreement with respect to the Initial Notes held by such
Holder, or in the case of a Holder of Exchange Notes, the Initial Notes
exchanged for such Exchange Notes. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to contribute pursuant
to this Section 8(c) are several in proportion to the respective principal
amount of Initial Notes held by each of the Holders hereunder and not joint.
SECTION 9. Rule 144A. The Company and the Guarantors each hereby
agrees with each Holder, 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 thereof 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
Securities 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 hereunder unless such Holder
(a) agrees to sell such Holder's Transfer Restricted Securities on the basis
provided in a customary underwriting agreement entered into in connection
herewith and (b) completes and executes all reasonable questionnaires, powers
of attorney, 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
Company.
SECTION 12. Miscellaneous.
(a) Remedies. The Company and the Guarantors each hereby agrees 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 agree
to waive the defense in any action for specific performance that a remedy at
law would be adequate.
19
(b) No Inconsistent Agreements. The Company will not, and will cause
the Guarantors not to, on or after the date of this Agreement enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any
way conflict with and are not inconsistent with the rights granted to the
holders of the Company's securities under any agreement in effect on the date
hereof.
(c) Adjustments Affecting the Notes. The Company and the Guarantors
will not take any action, or permit any change to occur, with respect to the
Notes that would materially and adversely affect the ability of the Holders to
Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless the Company 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 hereof that relates
exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant
to such Exchange Offer may be given by the Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities being tendered
or registered; provided that, with respect to any matter that directly or
indirectly affects the rights of any Initial Purchaser hereunder, the Company
shall obtain the written consent of each such Initial Purchaser with respect
to which such amendment, qualification, supplement, waiver, consent or
departure is to be effective.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), 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 Company:
Rayovac Corporation
0 Xxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
20
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxx Xxxxx
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; provided, however, that
this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or
assign acquired Transfer Restricted Securities from such Holder.
(g) 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.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) 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.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability
of any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(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 hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred
to herein with respect to the registration rights granted by the Company with
respect to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
RAYOVAC CORPORATION
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President -
General Counsel and Secretary
ROV HOLDING, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
ROVCAL, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
UNITED INDUSTRIES CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President, Secretary and
General Counsel
XXXXXXX COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Secretary
22
WPC BRANDS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Secretary
SYLORR PLANT CORP.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Secretary
GROUND ZERO, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Secretary
NU-GRO US HOLDCO CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Secretary
NU-GRO AMERICA CORP.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Secretary
23
IB NITROGEN INC.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Secretary
NU-GRO TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Secretary
UNITED PET GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Secretary
DB ONLINE, LLC
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Secretary
SOUTHERN CALIFORNIA FOAM, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Secretary
24
AQ HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Secretary
AQUARIA, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Secretary
PERFECTO HOLDING CORP.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Secretary
AQUARIUM SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Secretary
PERFECTO MANUFACTURING, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Secretary
25
JUNGLE TALK INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Secretary
PETS `N PEOPLE, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Secretary
26
The foregoing Registration Rights Agreement is hereby confirmed and
accepted as of the date first above written:
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
ABN AMRO INCORPORATED
By: Banc of America Securities LLC
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx
Managing Director
27
SCHEDULE A
Guarantor Jurisdiction of Incorporation
--------- -----------------------------
ROV Holding, Inc. Delaware
Rovcal, Inc. California
United Industries Corporation Delaware
Xxxxxxx Company Missouri
WPC Brands, Inc. Wisconsin
Sylorr Plant Corp. Delaware
Ground Zero, Inc. Missouri
Nu-Gro US Holdco Corporation Delaware
Nu-Gro America Corp. Delaware
IB Nitrogen Inc. Delaware
Nu-Gro Technologies, Inc. Delaware
United Pet Group, Inc. Delaware
DB Online, LLC Hawaii
Southern California Foam, Inc. California
AQ Holdings, Inc. Delaware
Aquaria, Inc. California
Perfecto Holding Corp. Delaware
Aquarium Systems, Inc. Delaware
Perfecto Manufacturing, Inc. Delaware
Jungle Talk International, Inc. Delaware
Pets `N People, Inc. Delaware
