CROWN EUROPEAN HOLDINGS SA
$1,085,000,000 9 1/2% Second Priority Senior Secured Notes due 2011
(euro)285,000,000 10 1/4% Second Priority Senior Secured Notes due 2011
REGISTRATION RIGHTS AGREEMENT
New York, New York
February 26, 2003
Xxxxxxx Xxxxx Xxxxxx Inc.
Deutsche Bank Securities Inc.
As Representatives of the several Initial
Purchasers named in Schedule I hereto
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Crown European Holdings SA, a societe anonyme organized under the laws
of France (the "Company"), proposes, among other things, to issue and sell to
the several initial purchasers named in Schedule I hereto (the "Initial
Purchasers"), for whom you are acting as representatives (the
"Representatives"), $1,085,000,000 aggregate principal amount of its 9 1/2%
Second Priority Senior Secured Notes due 2011 (the "Dollar Notes") and
(euro)285,000,000 aggregate principal amount of its 10 1/4% Second Priority
Senior Secured Notes due 2011 (the "Euro Notes" and, collectively with the
Dollar Notes, the "Notes") upon the terms and conditions set forth in a purchase
agreement dated February 11, 2003 (the "Purchase Agreement") relating to the
initial placement of the Notes (the "Initial Placement"). The Company's
obligations under the Notes will be unconditionally guaranteed (the
"Guarantees") by Crown Holdings, Inc., a Pennsylvania corporation ("Crown"), and
each of Crown's subsidiaries named in Schedule II to the Purchase Agreement
(collectively, the "Guarantors"). References herein to the "Issuers" refer to
the Company and the Guarantors. References herein to the "Securities" refer to
the Notes and the Guarantees. References herein to (i) the "Dollar Securities"
refer to the Dollar Notes and the Guarantees thereof and (ii) the "Euro
Securities" refer to the Euro Notes and the Guarantees thereof. To induce the
Initial Purchasers to enter into the Purchase Agreement and to satisfy a
condition of your obligations thereunder, the Issuers hereby agree with you for
your benefit and the benefit of the holders from time to time of Securities and
Exchange Securities (as defined below) (including the Initial Purchasers) (each
a "Holder" and collectively the "Holders") as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following defined terms shall have the following respective
meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
-2-
"Affiliate" of any specified Person shall mean any other Person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified Person. For purposes of this definition, "control"
of a Person shall mean the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person whether by contract or
otherwise; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as such
under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Company" shall mean Crown European Holdings SA, a societe anonyme
organized under the laws of France, and any successor thereto.
"Conduct Rules" shall have the meaning set forth in Section 4(u)
hereof.
"Crown" shall mean Crown Holdings, Inc., a Pennsylvania corporation,
and any successor thereto.
"CT" shall have the meaning set forth in Section 17 hereof.
"Dollar Exchange Securities" shall mean debt securities of the Company
guaranteed by the Guarantors identical in all material respects to the Dollar
Securities (except that the cash interest and interest rate step-up provisions
and the U.S. transfer restrictions shall be modified or eliminated, as
appropriate) to be issued under the Indenture.
"Dollar Notes" shall have the meaning set forth in the preamble.
"Dollar Securities" shall have the meaning set forth in the preamble.
"Euro Exchange Securities" shall mean debt securities of the Company
guaranteed by the Guarantors identical in all material respects to the Euro
Securities (except that the cash interest and interest rate step-up provisions
and the U.S. transfer restrictions shall be modified or eliminated, as
appropriate) to be issued under the Indenture.
"Euro Notes" shall have the meaning set forth in the preamble.
"Euro Securities" shall have the meaning set forth in the preamble.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" shall mean the one-year period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
-3-
"Exchange Offer Registration Statement" shall mean a registration
statement of the Issuers on an appropriate form under the Act with respect to
the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" shall mean, collectively, the Dollar Exchange
Securities and the Euro Exchange Securities.
"Exchanging Dealer" shall mean any Holder (which may include any
Initial Purchaser) that is a Broker-Dealer and elects to exchange any Securities
that it acquired for its own account as a result of market-making activities or
other trading activities (but not directly from any Issuer or any Affiliate of
any Issuer) for Exchange Securities.
"Final Memorandum" shall have the meaning set forth in the Purchase
Agreement.
"Guarantees" shall have the meaning set forth in the preamble hereto.
"Guarantors" shall have the meaning set forth in the preamble hereto.
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Securities to be
dated as of the date of original issuance of the Notes among the Company, the
Guarantors and Xxxxx Fargo Bank Minnesota, National Association, as trustee, as
amended or supplemented from time to time in accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the preamble
hereto.
"Initial Purchasers" shall have the meaning set forth in the preamble
hereto.
"Issuers" shall have the meaning set forth in the preamble hereto.
"Judgment Currency" shall have the meaning set forth in Section 18
hereof.
"Losses" shall have the meaning set forth in Section 6(d) hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Securities and Exchange Securities registered
under a Registration Statement.
"Managing Underwriters" shall mean the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"Notes" shall have the meaning set forth in the preamble hereto.
"Person" shall mean an individual, trustee, corporation, partnership,
limited liability company, joint stock company, trust, unincorporated
association, union, business association, firm or other legal entity.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by
-4-
any prospectus supplement, with respect to the terms of the offering of any
portion of the Securities or the Exchange Securities covered by such
Registration Statement, and all amendments and supplements thereto and all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" shall mean the proposed offer of the
Issuers to issue and deliver to the Holders of the Securities that are not
prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the Securities, a like aggregate principal amount of the
Exchange Securities.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the Exchange Securities pursuant to the provisions of this Agreement, any
amendments and supplements to such registration statement, including
post-effective amendments (in each case including the Prospectus contained
therein), all exhibits thereto and all material incorporated by reference
therein.
"Representatives" shall have the meaning set forth in the preamble
hereto.
"Securities" shall have the meaning set forth in the preamble hereto.
"Shelf Registration" shall mean a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" shall have the meaning set forth in Section
3(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Issuers pursuant to the provisions of Section 3 hereof which
covers some or all of the Securities or Exchange Securities, as applicable, on
an appropriate form under Rule 415 under the Act, or any similar rule that may
be adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
"underwriter" shall mean any underwriter of Securities or Exchange
Securities in connection with an offering thereof under a Shelf Registration
Statement.
2. Registered Exchange Offer. (a) The Issuers shall prepare and, not
later than 90 days following the date of the original issuance of the Securities
(or if such 90th day is not a Business Day, the next succeeding Business Day),
shall file with the Commission the Exchange Offer Registration Statement with
respect to the Registered Exchange Offer. The Issuers shall use their reasonable
best efforts to cause the Exchange Offer Registration Statement to become
effective under the Act within 210 days of the date of the original issuance of
the Securities (or if such 210th day is not a Business Day, the next succeeding
Business Day).
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Issuers shall promptly commence the Registered Exchange Offer, it
being the objective of such Registered Exchange Offer to enable each Holder
electing to exchange Securities for Exchange Securities (assuming that such
Holder is not an Affiliate of any Issuer, acquires the Exchange Securities in
the ordinary course of such Holder's business, has no arrangements with any
Person to participate in the distribution of the Exchange Securities and is not
prohibited by any law or policy of the Commission from participating in the
Registered Exchange Offer) to trade
-5-
such Exchange Securities from and after their receipt without any limitations or
restrictions under the Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the United
States. In the Registered Exchange Offer, Holders will only be permitted to
exchange (i) Dollar Securities for Dollar Exchange Securities and (ii) Euro
Securities for Euro Exchange Securities.
(c) In connection with the Registered Exchange Offer, the Issuers
shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than 30
days after the date notice thereof is mailed to the Holders (or longer
if required by applicable law);
(iii) use their reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective under the Act,
supplemented and amended as required under the Act, to ensure that it
is available for sales of Exchange Securities by Exchanging Dealers
during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee or an Affiliate of the Trustee;
(v) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last Business
Day on which the Registered Exchange Offer is open;
(vi) if requested by the Commission, prior to effectiveness of
the Exchange Offer Registration Statement, provide a supplemental
letter to the Commission (A) stating that the Issuers are conducting
the Registered Exchange Offer in reliance on the position of the
Commission in Exxon Capital Holdings Corporation (pub. avail. May 13,
1988) and Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991); and
(B) including a representation that the Issuers have not entered into
any arrangement or understanding with any Person to distribute the
Exchange Securities to be received in the Registered Exchange Offer
and that, to the best of the Issuers' information and belief, each
Holder participating in the Registered Exchange Offer is acquiring the
Exchange Securities in the ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the Exchange Securities; and
(vii) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Issuers shall:
(i) accept for exchange all Securities validly tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
-6-
(ii) deliver to the Trustee for cancellation in accordance with
Section 4(s) hereof all Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to
(x) each Holder of Dollar Securities a principal amount of Dollar
Exchange Securities equal to the principal amount of the Dollar
Securities of such Holder so accepted for exchange and (y) each Holder
of Euro Securities a principal amount of Euro Exchange Securities
equal to the principal amount of the Euro Securities of such Holder so
accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer
and any such Holder using the Registered Exchange Offer to participate in a
distribution of the Exchange Securities (x) could not under Commission policy as
in effect on the date of this Agreement rely on the position of the Commission
in Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991) and Exxon Capital
Holdings Corporation (pub. avail. May 13, 1988), as interpreted in the
Commission's letter to Xxxxxxxx & Sterling dated July 2, 1993 and similar
no-action letters; and (y) must comply with the registration and prospectus
delivery requirements of the Act in connection with any secondary resale
transaction which 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 under the Act if the resales are of Exchange
Securities obtained by such Holder in exchange for Securities acquired by such
Holder directly from any Issuer or one of its Affiliates. Accordingly, each
Holder participating in the Registered Exchange Offer shall be required to
represent to the Issuers that, at the time of the consummation of the Registered
Exchange Offer:
(i) any Exchange Securities received by such Holder will be
acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding with
any Person to participate in the distribution of the Securities or the
Exchange Securities within the meaning of the Act; and
(iii) such Holder is not an Affiliate of any Issuer.
(f) If any Initial Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange of
Securities constituting any portion of an unsold allotment, at the request of
such Initial Purchaser, the Issuers shall issue and deliver to such Initial
Purchaser or the Person purchasing Exchange Securities registered under a Shelf
Registration Statement as contemplated by Section 3 hereof from such Initial
Purchaser, in exchange for such Securities, a like principal amount of Exchange
Securities (it being understood that the Issuers shall only issue and deliver
(i) Dollar Exchange Securities in exchange for Dollar Securities and (ii) Euro
Exchange Securities in exchange for Euro Securities). The Issuers shall use
their reasonable best efforts to cause the same CUSIP, ISIN and Common Code
numbers to be assigned for such Exchange Securities as for Exchange Securities
issued pursuant to the Registered Exchange Offer.
(g) Interest on each Exchange Security shall accrue from the last date
on which interest was paid on the Security surrendered in exchange therefor or,
if no interest has been paid on such Security, from the date of such Security's
original issue.
3. Shelf Registration. (a) If (i) due to any change in law or
applicable interpretations thereof by the Commission's staff, the Issuers
determine upon advice of their outside counsel that they are not permitted to
effect the Registered Exchange Offer as contemplated by Section 2 hereof; (ii)
for any other reason
-7-
the Registered Exchange Offer is not consummated within 240 days after the date
of the original issuance of the Securities; or (iii) prior to the 20th day
following the consummation of the Registered Exchange Offer (x) any Initial
Purchaser so requests with respect to Securities that are not eligible to be
exchanged for Exchange Securities in the Registered Exchange Offer and that are
held by it following consummation of the Registered Exchange Offer, (y) any
Holder notifies the Company that it is not or was not eligible to participate in
the Registered Exchange Offer or (z) in the case of any Initial Purchaser that
participates in the Registered Exchange Offer or acquires Exchange Securities
pursuant to Section 2(f) hereof, such Initial Purchaser notifies the Company
that it will not or did not receive freely tradeable Exchange Securities in
exchange for Securities constituting any portion of an unsold allotment (it
being understood that (A) the requirement that an Initial Purchaser deliver a
Prospectus containing the information required by Item 507 or 508 of Regulation
S-K under the Act in connection with sales of Exchange Securities acquired in
exchange for such Securities shall result in such Exchange Securities being not
"freely tradeable"; and (B) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of Exchange Securities acquired in the
Registered Exchange Offer in exchange for Securities acquired as a result of
market-making activities or other trading activities shall not result in such
Exchange Securities being not "freely tradeable"), the Issuers shall effect a
Shelf Registration in accordance with Section 3(b) hereof.
(b) (i) The Issuers shall as promptly as practicable (but in no event
more than 60 days after so required or requested pursuant to this Section 3),
file with the Commission, and thereafter shall use their reasonable best efforts
to cause to be declared effective under the Act within 120 days after so
required or requested pursuant to this Section 3, a Shelf Registration Statement
relating to the offer and sale of the Securities or the Exchange Securities, as
applicable, by the Holders thereof from time to time in accordance with the
methods of distribution elected by such Holders and set forth in such Shelf
Registration Statement; provided, however, that no Holder (other than an Initial
Purchaser) shall be entitled to have the Securities held by it covered by such
Shelf Registration Statement unless such Holder agrees in writing to be bound by
all of the provisions of this Agreement applicable to such Holder; and provided,
further, that with respect to Exchange Securities received by an Initial
Purchaser in exchange for Securities constituting any portion of an unsold
allotment, the Issuers may, if permitted by current interpretations by the
Commission's staff, file a post-effective amendment to the Exchange Offer
Registration Statement containing the information required by Item 507 or 508 of
Regulation S-K, as applicable, in satisfaction of their obligations under this
subsection with respect thereto, and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and governed by the
provisions herein applicable to, a Shelf Registration Statement.
(ii) The Issuers shall use their reasonable best efforts to keep the
Shelf Registration Statement continuously effective, supplemented and amended as
required by the Act, in order to permit the Prospectus forming part thereof to
be usable by Holders until the earliest of (x) the time when all the Securities
or Exchange Securities, as applicable, covered by the Shelf Registration
Statement can be sold pursuant to Rule 144 under the Act without any limitations
under clauses (c), (e), (f) and (h) of Rule 144 under the Act, (y) two years
from the effective date of the Shelf Registration Statement (or until one year
from the effective date of the Shelf Registration Statement if the Shelf
Registration Statement is filed at the request of an Initial Purchaser) and (z)
the date on which all the Securities or Exchange Securities, as applicable,
covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement (in any such case, such period being called the "Shelf
Registration Period"). The Issuers shall be deemed not to have used their
reasonable best efforts to keep the Shelf Registration Statement effective
during the requisite period if any of them voluntarily takes any action that
would reasonably be expected to result in Holders of Securities or Exchange
Securities covered thereby not being able to offer and sell such Securities or
Exchange Securities during that period, unless (A) such action is required by
applicable law; or (B) such action is taken by such Issuer in good faith and for
valid business reasons (not including avoidance of its obligations hereunder),
including the acquisition or divestiture of assets, so long as the Issuers
thereafter comply with the requirements of Section 4(k) hereof, if applicable.
-8-
(iii) The Issuers shall cause the Shelf Registration Statement and
the related Prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement or such amendment or
supplement, (A) to comply in all material respects with the applicable
requirements of the Act and the rules and regulations of the Commission; and (B)
not to contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
4. Additional Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Issuers shall:
(i) furnish to each of you, not less than five Business Days
prior to the filing thereof with the Commission, a copy of any
Exchange Offer Registration Statement and any Shelf Registration
Statement, and each amendment thereof and each amendment or
supplement, if any, to the Prospectus included therein (including
all documents incorporated by reference therein after the initial
filing) and shall use their reasonable best efforts to reflect in
each such document, when so filed with the Commission, such
comments as you reasonably propose;
(ii) in the case of an Exchange Offer Registration
Statement, to the extent permitted by the Act, include the
information set forth in Annex A hereto on the front cover of the
Prospectus included in the Exchange Offer Registration Statement,
in Annex B hereto in the forepart of the Exchange Offer
Registration Statement in a section setting forth details of the
Exchange Offer, in Annex C hereto in the underwriting or plan of
distribution section of the Prospectus contained in the Exchange
Offer Registration Statement, and in Annex D hereto in the letter
of transmittal delivered pursuant to the Registered Exchange
Offer;
(iii) in the case of an Exchange Offer Registration
Statement, if requested by an Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as
applicable, in the Prospectus contained in the Exchange Offer
Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include
the names of the Holders that propose to sell Securities or
Exchange Securities pursuant to the Shelf Registration Statement
as selling security holders.
(b) The Issuers shall ensure that:
(i) any Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any amendment or
supplement thereto complies in all material respects with the Act
and the rules and regulations thereunder; and
(ii) any Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement
of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading.
-9-
(c) The Issuers shall advise you, the Holders of Securities or Exchange
Securities covered by any Shelf Registration Statement and any Exchanging Dealer
under any Exchange Offer Registration Statement that has provided in writing to
any Issuer a telephone or facsimile number and address for notices, and, if
requested by you or any such Holder or Exchanging Dealer, shall confirm such
advice in writing (which notice pursuant to clauses (ii)-(v) hereof shall be
accompanied by an instruction to suspend the use of the Prospectus until the
Issuers shall have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by any Issuer of any notification with
respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the initiation
of any proceeding for such purpose; and
(v) of the happening of any event that requires any change
in the Registration Statement or the Prospectus so that, as of
such date, the statements therein are not misleading and do not
omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in the light of the circumstances under which they
were made) not misleading.
(d) The Issuers shall use their reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement or the qualification of the securities therein for sale in any
jurisdiction at the earliest possible time.
(e) The Issuers shall furnish to each Holder of Securities or Exchange
Securities covered by any Shelf Registration Statement, without charge, at least
one copy of such Shelf Registration Statement and any post-effective amendment
thereto, including all material incorporated therein by reference, and, if the
Holder so requests in writing, all exhibits thereto (including exhibits
incorporated by reference therein).
(f) The Issuers shall, during the Shelf Registration Period, deliver to
each Holder of Securities or Exchange Securities covered by any Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may reasonably
request. The Issuers consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of securities in connection
with the offering and sale of the securities covered by the Prospectus, or any
amendment or supplement thereto, included in the Shelf Registration Statement.
(g) The Issuers shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amend-
-10-
ment thereto, including all material incorporated by reference therein, and, if
the Exchanging Dealer so requests in writing, all exhibits thereto (including
exhibits incorporated by reference therein).
(h) The Issuers shall promptly deliver to each Initial Purchaser, each
Exchanging Dealer and each other Person required to deliver a Prospectus during
the Exchange Offer Registration Period, without charge, as many copies of the
Prospectus included in such Exchange Offer Registration Statement and any
amendment or supplement thereto as any such Person may reasonably request. The
Issuers consent to the use of the Prospectus or any amendment or supplement
thereto by any Initial Purchaser, any Exchanging Dealer and any such other
Person that may be required to deliver a Prospectus following the Registered
Exchange Offer in connection with the offering and sale of the Exchange
Securities covered by the Prospectus, or any amendment or supplement thereto,
included in the Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of
Securities or Exchange Securities pursuant to any Registration Statement, the
Issuers shall arrange, if necessary, for the qualification of the Securities or
the Exchange Securities for sale under the laws of such jurisdictions as any
Holder shall reasonably request and will maintain such qualification in effect
so long as required; provided that in no event shall any Issuer be obligated to
qualify to do business in any jurisdiction where it is not then so qualified or
to take any action that would subject it to service of process in suits, other
than those arising out of the Initial Placement, the Registered Exchange Offer
or any offering pursuant to a Shelf Registration Statement, in any such
jurisdiction where it is not then so subject.
(j) The Issuers shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Exchange Securities
or Securities to be issued or sold pursuant to any Registration Statement free
of any restrictive legends and in such denominations and registered in such
names as Holders may request.
(k) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Issuers shall promptly prepare a post-effective
amendment to the applicable Registration Statement or an amendment or supplement
to the related Prospectus or file any other required document so that, as
thereafter delivered to purchasers of the Securities included therein, the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading. In such
circumstances, the period of effectiveness of the Exchange Offer Registration
Statement provided for in Section 2 hereof and the Shelf Registration Statement
provided for in Section 3(b) hereof shall each be extended by the number of days
from and including the date of the giving of a notice of suspension pursuant to
Section 4(c) hereof to and including the date when the Initial Purchasers, the
Holders and any known Exchanging Dealer shall have received such amended or
supplemented Prospectus pursuant to this Section 4.
(l) Not later than the effective date of any Registration Statement,
the Issuers shall provide CUSIP, ISIN and Common Code numbers for the Securities
or the Exchange Securities, as the case may be, registered under such
Registration Statement and provide the Trustee with printed certificates for
such Securities or Exchange Securities, in a form eligible for deposit with The
Depository Trust Company.
(m) The Company shall comply with all applicable rules and regulations
of the Commission and shall make generally available to its security holders as
soon as practicable after the effective
-11-
date of the applicable Registration Statement an earnings statement satisfying
the provisions of Section 11(a) of the Act.
(n) The Issuers shall cause the Indenture to be qualified under the
Trust Indenture Act in a timely manner.
(o) The Company may require each Holder of securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of such securities as the
Company may from time to time reasonably require for inclusion in such
Registration Statement. The Company may exclude from such Shelf Registration
Statement the Securities or Exchange Securities of any Holder that fails to
furnish such information within a reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, the Issuers shall
enter into such and take all other appropriate actions (including if requested
an underwriting agreement in customary form) in order to expedite or facilitate
the registration or the disposition of the Securities or Exchange Securities,
and in connection therewith, if an underwriting agreement is entered into, cause
the same to contain indemnification provisions and procedures no less favorable
than those set forth in Section 6 (or such other provisions and procedures
acceptable to the Majority Holders and the Managing Underwriters, if any, with
respect to all parties to be indemnified pursuant to Section 6.
(q) In the case of any Shelf Registration Statement, the Issuers shall:
(i) make reasonably available for inspection by a
representative for the Holders of Securities or Exchange
Securities to be registered thereunder, which representative
shall be selected by the Majority Holders, by the underwriters,
if any, participating in any disposition pursuant to such Shelf
Registration Statement, and by any attorney, accountant or other
agent for the Holders retained by the Majority Holders or for the
underwriters, if any, all relevant financial and other records,
pertinent corporate documents and properties of each Issuer and
its subsidiaries;
(ii) cause the officers, directors and employees of each
Issuer to supply all relevant information reasonably requested by
the representative for the Holders, by the underwriters, if any,
or by any such attorney, accountant or agent in connection with
any such Shelf Registration Statement as is customary for similar
due diligence examinations; provided, however, that any
information that is designated in writing by any Issuer, in good
faith, as confidential at the time of delivery of such
information shall be kept confidential by the Holders, the
underwriters, if any, and any such attorney, accountant or agent,
unless such disclosure is made in connection with a court
proceeding or required by law, or such information becomes
available to the public generally or through a third party
without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the
Holders of Securities or Exchange Securities registered
thereunder and the underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in
primary underwritten offerings and covering matters including,
but not limited to, those set forth in the Purchase Agreement;
-12-
(iv) obtain opinions of counsel to the Issuers (which
counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters, if any)
addressed to each selling Holder and the underwriters, if any,
covering such matters as are customarily covered in opinions
requested in underwritten offerings and such other matters as may
be reasonably requested by such Holders and underwriters;
(v) obtain "cold comfort" letters from the independent
certified public accountants of the Company (and, if necessary,
any other independent certified public accountants of any Issuer
or any subsidiary of any Issuer or of any business acquired by
any Issuer for which financial statements and financial data are,
or are required to be, included in the Shelf Registration
Statement), addressed to each selling Holder of securities
registered thereunder and the underwriters, if any, in customary
form and covering matters of the type customarily covered in
"cold comfort" letters in connection with primary underwritten
offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence compliance with
Section 4(k) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Issuers.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section 4(q)
shall be performed at (A) the effectiveness of such Shelf Registration Statement
and each post-effective amendment thereto; and (B) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
(r) In the case of any Exchange Offer Registration Statement, upon the
request of any Initial Purchaser, the Issuers shall:
(i) make reasonably available for inspection by the Initial
Purchasers, and any attorney, accountant or other agent retained
by the Initial Purchasers, all relevant financial and other
records, pertinent corporate documents and properties of the
Issuers and their respective subsidiaries;
(ii) cause the officers, directors and employees of each
Issuer to supply all relevant information reasonably requested by
any Initial Purchaser or any attorney, accountant or agent
retained by the Initial Purchasers in connection with any such
Exchange Offer Registration Statement as is customary for similar
due diligence examinations; provided, however, that any
information that is designated in writing by any Issuer, in good
faith, as confidential at the time of delivery of such
information shall be kept confidential by such Initial Purchaser
or any such attorney, accountant or agent, unless such disclosure
is made in connection with a court proceeding or required by law,
or such information becomes available to the public generally or
through a third party without an accompanying obligation of
confidentiality;
(iii) make such representations and warranties to the
Initial Purchasers, in form, substance and scope as are
customarily made by issuers to underwriters in primary
underwritten offerings and covering matters including, but not
limited to, those set forth in the Purchase Agreement;
-13-
(iv) obtain opinions of counsel to the Issuers (which
counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Initial Purchasers and their
counsel, addressed to the Initial Purchasers, covering such
matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be
reasonably requested by the Initial Purchasers or their counsel;
(v) obtain "cold comfort" letters from the independent
certified public accountants of the Company (and, if necessary,
any other independent certified public accountants of any Issuer
or any subsidiary of any Issuer or of any business acquired by
any Issuer for which financial statements and financial data are,
or are required to be, included in the Exchange Offer
Registration Statement), addressed to the Initial Purchasers, in
customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with primary
underwritten offerings, or if requested by the Initial Purchasers
or their counsel in lieu of a "cold comfort" letter, an
agreed-upon procedures letter under Statement on Auditing
Standards No. 35, covering matters requested by the Initial
Purchasers or their counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Initial Purchasers or their counsel,
including those to evidence compliance with Section 4(k) and with
conditions customarily contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section 4(r) shall be performed at the close of the Registered Exchange Offer
and the effective date of any post-effective amendment to the Exchange Offer
Exchange Offer Registration Statement.
(s) If a Registered Exchange Offer is to be consummated, upon delivery
of the Securities by Holders to the Company (or to such other Person as directed
by the Company) in exchange for the Exchange Securities, the Company shall mark,
or caused to be marked, on the Securities so exchanged that such Securities are
being canceled in exchange for the Exchange Securities. In no event shall the
Securities be marked as paid or otherwise satisfied.
(t) The Issuers will use their reasonable best efforts (i) if the
Securities have been rated prior to the initial sale of such Securities, to
confirm such ratings will apply to the Securities or the Exchange Securities, as
the case may be, covered by a Exchange Offer Registration Statement; or (ii) if
the Securities were not previously rated, to cause the Securities covered by a
Registration Statement to be rated with at least one nationally recognized
statistical rating agency, if so requested by Majority Holders with respect to
the related Registration Statement or by any Managing Underwriters.
(u) In the event that any Broker-Dealer shall underwrite any Securities
or Exchange Securities or participate as a member of an underwriting syndicate
or selling group or "assist in the distribution" (within the meaning of the
Conduct Rules of the National Association of Securities Dealers, Inc. (the
"Conduct Rules")) thereof, whether as a Holder or as an underwriter, a placement
or sales agent or a broker or dealer in respect thereof, or otherwise, the
Issuers shall assist such Broker-Dealer in complying with the requirements of
such Conduct Rules, including, without limitation, by:
(i) if such Conduct Rules shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules) to
participate in the preparation of the Registration Statement, to
exercise usual standards of due diligence with respect thereto
and, if any portion of the offering contemplated by such
Registration State-
-14-
ment is an underwritten offering or is made through a placement
or sales agent, to recommend the yield of such Securities or
Exchange Securities;
(ii) indemnifying any such qualified independent underwriter
to the extent of the indemnification of underwriters provided in
Section 6 hereof; and
(iii) providing such information to such Broker-Dealer as
may be required in order for such Broker-Dealer to comply with
the requirements of such Conduct Rules.
(v) The Issuers shall use their reasonable best efforts to
take all other steps necessary to effect the registration of the
Securities or the Exchange Securities, as the case may be,
covered by a Registration Statement.
5. Registration Expenses. The Issuers shall bear all expenses incurred
in connection with the performance of their obligations under Sections 2, 3 and
4 hereof and, in the event of any Shelf Registration Statement, will reimburse
the Holders for the reasonable fees and disbursements of one firm or counsel
designated by the Majority Holders to act as counsel for the Holders in
connection therewith, and, in the case of any Exchange Offer Registration
Statement, will reimburse the Initial Purchasers for the reasonable fees and
disbursements of counsel acting in connection therewith.
6. Indemnification and Contribution. (a) The Issuers (other than the
Company) jointly and severally agree, and the Company severally agrees, to
indemnify and hold harmless each Holder of Securities or Exchange Securities, as
the case may be, covered by any Registration Statement (including each Initial
Purchaser and each Affiliate thereof and, with respect to any Prospectus
delivery as contemplated in Section 4(h) hereof, each Exchanging Dealer), the
directors, officers, employees and agents of each such Holder and each person
who controls any such Holder within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (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 as originally filed or in any amendment thereof, or in any preliminary
Prospectus or the 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 not misleading, and to reimburse each such indemnified party,
as incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Issuers will not be liable in
any case to the extent that any such loss, claim, damage or liability 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 Company by or on behalf of any such
Holder specifically for inclusion therein; provided, further, that with respect
to any untrue statement or omission of material fact made in any preliminary
Prospectus, the indemnity agreement contained in this Section 6 shall not inure
to the benefit of any Holder from whom the Person asserting any such loss,
claim, damage or liability purchased such Securities or Exchange Securities, as
the case may be, to the extent that any such loss, claim, damage or liability of
such Holder occurs under the circumstance where it shall have been determined by
a court of competent jurisdiction by final and nonappealable judgment that (w)
the Company had previously furnished copies of the Prospectus to such Holder,
(x) delivery of the Prospectus was required by the Act to be made to such
Person, (y) the untrue statement or omission of a material fact contained in the
preliminary Prospectus was corrected in the Prospectus and (z) there was not
sent or given
-15-
to such Person, at or prior to the written confirmation of the sale of such
securities to such Person, a copy of the Prospectus. This indemnity agreement
will be in addition to any liability which the Issuers may otherwise have.
The Issuers (other than the Company) also jointly and severally agree,
and the Company severally agrees, to indemnify or contribute as provided in
Section 6(d) to Losses of each underwriter of Securities or Exchange Securities,
as the case may be, registered under a Shelf Registration Statement, their
directors, officers, employees or agents and each person who controls such
underwriter on substantially the same basis as that of the indemnification of
the Initial Purchasers and the selling Holders provided in this Section 6(a) and
shall, if requested by any Holder, enter into an underwriting agreement
reflecting such agreement, as provided in Section 4(p) hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Initial Purchaser and each Affiliate thereof and, with respect
to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer) severally and not jointly agrees to indemnify and hold
harmless the Issuers, each of their respective directors, each of their
respective officers who signs such Registration Statement, and each person who
controls any Issuer within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Issuers to each such Holder,
but only with reference to written information relating to such Holder furnished
to the Issuers by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses; and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest; (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party; (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action; or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding. An indemnifying party
shall not be liable under this Section 6 to any indemnified party regarding any
settlement or compromise or consent to the entry of any
-16-
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
is consented to by such indemnifying party, which consent shall not be
unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 6 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, then each applicable indemnifying party shall have a joint
and several obligation (other than the Company, who shall have a several
obligation) to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Initial Placement and the
Registration Statement which resulted in such Losses; provided, however, that in
no case shall any Initial Purchaser or any subsequent Holder of any Security or
Exchange Security be responsible, in the aggregate, for any amount in excess of
the purchase discount or commission applicable to such Security, or in the case
of an Exchange Security, applicable to the Security that was exchangeable into
such Exchange Security, as set forth on the cover page of the Final Memorandum,
nor shall any underwriter be responsible for any amount in excess of the
underwriting discount or commission applicable to the securities purchased by
such underwriter under the Registration Statement which resulted in such Losses.
If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the indemnifying party and the indemnified party shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on the
one hand, and such indemnified party, on the other hand, in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Issuers shall be
deemed to be equal to the sum of (x) the total net proceeds from the Initial
Placement (before deducting expenses) as set forth on the cover page of the
Final Memorandum and (y) the total amount of additional interest which the
Issuers were not required to pay as a result of registering the securities
covered by the Registration Statement which resulted in such Losses. Benefits
received by the Initial Purchasers shall be deemed to be equal to the total
purchase discounts and commissions as set forth on the cover page of the Final
Memorandum, and benefits received by any other Holders shall be deemed to be
equal to the value of receiving Securities or Exchange Securities, as
applicable, registered under the Act. Benefits received by any underwriter shall
be deemed to be equal to the total underwriting discounts and commissions, as
set forth on the cover page of the Prospectus forming a part of the Registration
Statement which resulted in such Losses. Relative fault shall be determined by
reference to, among other things, whether any untrue or alleged untrue statement
of or omission or alleged omission to state a material fact relates to
information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The parties agree that it would not be just
and equitable if contribution were determined by pro rata allocation (even if
the Holders were treated as one entity for such purpose) or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), 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 Section 6, each person who
controls a Holder within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who controls any Issuer
within the meaning of either the Act or the Exchange Act, each officer of any
Issuer who shall have signed the Registration Statement and each director of any
Issuer shall have the same rights to contribution as the Issuers, subject in
each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Issuers or any of the officers, directors or controlling
-17-
Persons referred to in this Section 6 hereof, and will survive the sale by a
Holder of securities covered by a Registration Statement.
7. Underwritten Registrations. (a) If any of the Securities or Exchange
Securities, as the case may be, covered by any Shelf Registration Statement are
to be sold in an underwritten offering, the Managing Underwriters shall be
selected by the Majority Holders.
(b) No Person may participate in any underwritten offering pursuant to
any Shelf Registration Statement, unless such Person (i) agrees to sell such
Person's Securities or Exchange Securities, as the case may be, on the basis
reasonably provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements; and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
8. No Inconsistent Agreements. No Issuer has, as of the date hereof,
entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
9. Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Issuers have obtained the written consent of the
Majority Holders; provided that, with respect to any matter that directly or
indirectly affects the rights of any Initial Purchaser hereunder, the Issuers
shall obtain the written consent of each the Initial Purchasers against which
such amendment, qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Securities or Exchange
Securities, as the case may be, are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the rights of other
Holders may be given by the Majority Holders, determined on the basis of
Securities or Exchange Securities, as the case may be, being sold rather than
registered under such Registration Statement.
10. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such holder to
the Issuers in accordance with the provisions of this Section 10, which address
initially is, with respect to each Holder, the address of such Holder maintained
by the Registrar under the Indenture, with a copy in like manner to Xxxxxxx
Xxxxx Xxxxxx Inc.;
(b) if to you, initially at the respective addresses set forth in the
Purchase Agreement; and
(c) if to the Issuers, initially at their address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received.
The Initial Purchasers or the Issuers by notice to the other parties
may designate additional or different addresses for subsequent notices or
communications.
-18-
11. Successors. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties hereto,
including, without the need for an express assignment or any consent by the
Issuers thereto, subsequent Holders of Securities and the Exchange Securities.
The Issuers hereby agree to extend the benefits of this Agreement to any Holder
of Securities or the Exchange Securities, and any such Holder may specifically
enforce the provisions of this Agreement as if an original party hereto.
12. Counterparts. This Agreement may be in signed counterparts, each of
which shall an original and all of which together shall constitute one and the
same agreement.
13. Headings. The headings used herein are for convenience only and
shall not affect the construction hereof.
14. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed in the State of New York.
15. Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
16. Securities Held by the Issuers, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or Exchange Securities is required hereunder, Securities or Exchange Securities,
as applicable, held by any Issuers or its Affiliates (other than subsequent
Holders of Securities or Exchange Securities if such subsequent Holders are
deemed to be Affiliates solely by reason of their holdings of such Securities or
Exchange Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
17. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities. By the execution and delivery of this Agreement, each Issuer (i)
acknowledges that such Issuer has, by separate written instrument, irrevocably
designated and appointed CT Corporation System ("CT") (and any successor entity)
as its authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to this Agreement, the Securities or the
Exchange Securities that may be instituted in any federal or state court in the
State of New York or brought under Federal or state securities laws, and
acknowledges that CT has accepted such designation, (ii) submits to the
jurisdiction of any such court in any such suit or proceeding and (iii) agrees
that service of process upon CT and written notices of said service to such
Issuer in accordance with Section 10 hereof shall be deemed effective service of
process upon such Issuer in any such suit or proceeding. Each Issuer further
agrees to take any reasonable action, including the execution and filing of any
and all such documents and instruments, as may be necessary to continue such
designation and appointment of CT in full force and effect so long as any of the
Securities shall be outstanding; provided, however, that such Issuer may, by
written notice to the Representatives, designate such additional or alternative
agent for service of process under this Section 17 that (i) maintains an office
located in the Borough of Manhattan, City of New York in the State of New York
and (ii) is either (x) counsel for such Issuer or (y) a corporate service
company which acts as agent for service of process for other persons in the
ordinary course of its business. Such written notice shall identify the name of
such agent for process and the address of the office of such agent for process
in the Borough of Manhattan, City of New York, State of New York.
-19-
To the extent that any Issuer has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process with respect to itself
or its property, it hereby irrevocably waives such immunity in respect of its
obligations under each of this Agreement, the Securities and the Exchange
Securities. In addition, each Issuer irrevocably waives and agrees not to
assert, by way of motion, as a defense, or otherwise in any such suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
the above-mentioned courts for any reason whatsoever, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue for such suit
is improper, or that this Agreement, the Securities or the Exchange Securities
or the subject matter hereof or thereof may not be enforced in such courts.
The Issuers and the Initial Purchasers agree that a final judgment in
any such suit, action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Section 17 shall affect the right of the Trustee to serve
legal process in any other manner permitted by law or affect the right of the
Trustee to bring any action or proceeding against any Issuer or its property in
the courts of any other jurisdictions.
18. Judgment Currency. The Issuers, jointly and severally, agree to
indemnify and hold harmless each Holder (including each Initial Purchaser and
each Affiliate thereof and, with respect to any Prospectus delivery as
contemplated by Section 4(h) hereof, each Exchanging Dealer), the directors,
officers, employees and agents of each such Holder and each person who controls
any such Holder within the meaning of either the Act or the Exchange Act against
any loss incurred by such indemnified party as a result of any judgment or order
being given or made in favor of such indemnified party for any amount due under
this Agreement and such judgment or order being expressed and paid in a currency
(the "Judgment Currency") other than euros, to the extent such judgment relates
to Euro Securities or Euro Exchange Securities, or United States dollars, to the
extent such judgment relates to Dollar Securities or Dollar Exchange Securities,
and as a result of any variation as between (i) the rate of exchange at which
the euro or United States dollar amount, as the case may be, is converted into
the Judgment Currency for the purpose of such judgment or order and (ii) the
spot rate of exchange in The City of New York at which such indemnified party on
the date of payment of such judgment or order is able to purchase euros or
United States dollars, as the case may be, with the amount of the Judgment
Currency actually received by such indemnified party. The foregoing indemnity
shall continue in full force and effect notwithstanding any such judgment or
order as aforesaid. The term "spot rate of exchange" shall include any premiums
and costs of exchange payable in connection with the purchase of, or conversion
into, euros or United States dollars, as the case may be.
-20-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement among the
Issuers and the several Initial Purchasers.
Very truly yours,
Crown European Holdings SA
By /s/ Xxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Administrateur
GUARANTORS:
United States:
-------------
Crown Cork & Seal Company, Inc.
By /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Attest:
By /s/ Xxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
Crown Consultants, Inc.
Crown Cork & Seal Technologies Corporation
Crown Beverage Packaging, Inc.
Crown Cork de Puerto Rico, Inc.
Foreign Manufacturers Finance Corporation
Nationwide Recyclers' Inc.
Xxxxxx-AMS (USA), Inc.
Central States Can Co. of Puerto Rico, Inc.
Eyelet, Inc.
Eyelet Specialty Co., Inc.
Crown Financial Management, Inc.
Hocking Valley Leasing Company
Xxxxxx Plastik, Inc.
Crown Overseas Investments Corporation
By /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Crown Cork & Seal Americas, Inc.
-21-
By /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Crown Cork & Seal Company (USA), Inc.
By /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President, CFO and
Treasurer
Crown Cork & Seal Company (PA), Inc.
By /s/ Xxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: President
Crown Financial Corporation
By /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President, CFO and
Treasurer
Crown New Delaware Holdings, Inc.
By /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
CCK Investments LLC
By /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
CCK UK Investments LLC
By /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
CCK Deutschland Investments LLC
-22-
By /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Crown Canada Investments LLC
By /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
CCK Mexican Investments LLC
By /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Crown International Holdings, Inc.
By /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Crown Holdings, Inc.
By /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Crown Holdings (PA), LLC
(formerly Crown Holdings, LLC)
By /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Crown Cork & Seal Company (DE), LLC
(formerly Crown Cork & Seal Company, LLC)
By /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
Belgium:
-------
Crown Cork Company Belgium NV
-23-
By /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Canada:
------
Crown Cork & Seal Canada Inc.
By /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Secretary
889273 Ontario Inc.
By /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Secretary
Xxxxxx-AMS (Canada), Inc.
By /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Secretary
Xxxxxx Plastik Canada, Inc.
By /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Secretary
France:
------
Z.P. France
By /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Societe de Participations CarnaudMetalbox
By /s/ Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
Title: President Directeur General
Astra Plastique S.A.S.
-24-
By /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Polyflex S.A.
By /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
La Francaise de Developpement de la Boite
Boissons (Sofreb)
By /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Crown Cork Company France SA
By /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Germany:
-------
CarnaudMetalbox Deutschland GmbH
By /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
Crown Xxxxxx GmbH
By /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
Xxxxxxx Verpackungen
By /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
Xxxxxxx Verschlusse GmbH
-25-
By /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
Xxxxxxx & Xxxxx Metallverpackungen
By /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
CarnaudMetalbox Nahrungsmitteldosen
By /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
Xxxxxx Plastik GmbH
By /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
Raku Rastatt GmbH
By /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
Xxxxxx Engineering GmbH
By /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
Crown Cork & Seal Deutschland Holdings GmbH
(formerly Xxxxxxxxx GmbH)
By /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
-26-
Mexico:
------
Envases Generales Crown S.A. de C.V.
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Legal Representative
Xxxxxx Plastik de Mexico S.A. de C.V.
By /s Xxxxxxx Xxxx G.
--------------------------------------
Name: Xxxxxxx Xxxx G.
Title: Legal Representative
Switzerland:
-----------
Crown Cork AG Switzerland
By /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Crown Xxxxxx XX (Switzerland)
By /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
BMW Xxxxx (Switzerland)
By /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
United Kingdom:
--------------
Crown UK Holdings Limited
By /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Crown Cork Company Limited
By /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
-27-
CarnaudMetalbox Overseas Limited
By /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Crown Cork & Seal Finance PLC
By /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
CarnaudMetalbox PLC
By /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
United Closures and Plastics PLC
By /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
CarnaudMetalbox Engineering PLC
By /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Massmould Holdings Limited
By /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Specialty Packaging (UK) PLC
By /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
CarnaudMetalbox Group UK Limited
-27-
By /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
-28-
Crown Developpement S.N.C.
By /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
-29-
The foregoing Agreement is hereby confirmed
and accepted as of the date first above
written.
Xxxxxxx Xxxxx Xxxxxx Inc.
Deutsche Bank Securities Inc.
By: Xxxxxxx Xxxxx Xxxxxx Inc.
By /s/ Xxxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
For themselves and the other several Initial
Purchasers named in Schedule I to the
foregoing Agreement.
SCHEDULE I
Initial Purchasers:
-------------------
Xxxxxxx Xxxxx Xxxxxx Inc.
Deutsche Bank Securities Inc.
ABN AMRO Incorporated
Xxxxxxxxx & Company, Inc.
ANNEX A
Each Broker-Dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a Broker-Dealer in connection with resales of
Exchange Securities received in exchange for Securities where such Securities
were acquired by such Broker-Dealer as a result of market-making activities or
other trading activities. The Issuers have agreed that, starting on the
Expiration Date (as defined herein) and ending on the close of business one year
after the Expiration Date, they will make this Prospectus available to any
Broker-Dealer for use in connection with any such resale. See "Plan of
Distribution."
ANNEX B
Each Broker-Dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
ANNEX C
Plan of Distribution
--------------------
Each Broker-Dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Issuers have agreed
that, starting on the Expiration Date and ending on the close of business one
year after the Expiration Date, they will make this Prospectus, as amended or
supplemented, available to any Broker-Dealer for use in connection with any such
resale. In addition, until __________, 200__, all dealers effecting transactions
in the Exchange Securities may be required to deliver a prospectus.
The Issuers will not receive any proceeds from any sale of Exchange
Securities by Brokers-Dealers. Exchange Securities received by Broker-Dealers
for their own account pursuant to the Exchange Offer may be sold from time to
time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such Broker-Dealer and/or the purchasers of any such
Exchange Securities. Any Broker-Dealer that resells Exchange Securities that
were received by it for its own account pursuant to the Exchange Offer and any
broker or dealer that participates in a distribution of such Exchange Securities
may be deemed to be an "underwriter" within the meaning of the Act and any
profit of any such resale of Exchange Securities and any commissions or
concessions received by any such Persons may be deemed to be underwriting
compensation under the Act. The Letter of Transmittal states that by
acknowledging that it will deliver and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act.
For a period of one year after the Expiration Date, the Issuers will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any Broker-Dealer that requests such documents
in the Letter of Transmittal. The Issuers have agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
holder of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the holders of the Securities (including any
Broker-Dealers) against certain liabilities, including liabilities under the
Act.
If applicable, add information required by Regulation S-K Items 507
and/or 508.
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND
WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF
ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name: _________________________________________
Address: _________________________________________
_________________________________________
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the Exchange Securities in the ordinary course of its business, it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities and it has no arrangements or understandings with any Person to
participate in a distribution of the Exchange Securities. If the undersigned is
a Broker-Dealer that will receive Exchange Securities for its own account in
exchange for Securities, it represents that the Securities to be exchanged for
Exchange Securities were acquired by it as a result of market-making activities
or other trading activities and acknowledges that it will deliver a prospectus
in connection with any resale of such Exchange Securities; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be deemed
to admit that it is an "underwriter" within the meaning of the Act.
