EXHIBIT 4.2
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
DATED AS OF NOVEMBER 18, 2004
BY AND AMONG
K&F ACQUISITION, INC.
AS ISSUER
AND
XXXXXX BROTHERS INC.
XXXXXXX, SACHS & CO.
CITIGROUP GLOBAL MARKETS INC.
X.X. XXXXXX SECURITIES INC.
AS THE INITIAL PURCHASERS
This Registration Rights Agreement (this "AGREEMENT") is dated
as of November 18, 2004 by and among K&F Acquisition, Inc., a Delaware
corporation (the "ISSUER", and prior to the Merger Closing (as defined in the
Purchase Agreement), the "COMPANY") and Xxxxxx Brothers Inc., Xxxxxxx, Xxxxx &
Co., Citigroup Global Markets Inc. and X.X. Xxxxxx Securities Inc. (each an
"INITIAL PURCHASER" and, collectively, the "INITIAL PURCHASERS"), each of whom
has agreed to purchase the Company's 7-3/4% Senior Subordinated Notes due 2014
(the "NOTES") pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement,
dated November 5, 2004 (the "PURCHASE AGREEMENT"), by and among the Issuer, K&F
Industries, Inc. ("K&F" and after the Merger Closing and upon the execution of a
joinder agreement, the "COMPANY")), Aircraft Braking Systems Corporation,
Engineered Fabrics Corporation and Aircraft Braking Services, Inc.
(collectively, the "GUARANTORS") and the Initial Purchasers. In order to induce
the Initial Purchasers to purchase the Notes, the Issuer, K&F and the Guarantors
have 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 7 of the Purchase Agreement. The
representations, warranties and obligations of and relating to K&F and each of
the Guarantors shall not become effective until the Merger Closing, at which
time such representations, warranties and agreements shall become effective
pursuant to the terms of a joinder agreement as required by Section 10 of this
Agreement and thereafter all representations, warranties, agreements and
obligations of K&F and the Guarantors shall be joint and several.
Capitalized terms used herein and not otherwise defined shall
have the meanings assigned to them in the Indenture, dated the date hereof (the
"INDENTURE"), among the Issuer and U.S. Bank National Association, as Trustee
(the "TRUSTEE"), relating to the Notes and the Exchange Notes (as defined
below).
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
ACT: The U.S. Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
BROKER-DEALER: Any broker or dealer registered under the
Exchange Act.
CERTIFICATED SECURITIES: Definitive Notes, as defined in the
Indenture.
CLOSING DATE: The date of this Agreement.
COMMISSION: The U.S. Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Exchange Notes to be issued in the Exchange Offer, (b) the
maintenance of such Exchange Offer Registration Statement continuously effective
and the keeping of the Exchange Offer open for a period not less than the period
required pursuant to Section 3(b) hereof and (c)
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the delivery by the Company to the Registrar under the Indenture of Exchange
Notes in the same aggregate principal amount as the aggregate principal amount
of Notes tendered by Holders thereof pursuant to the Exchange Offer.
CONSUMMATION DEADLINE: As defined in Section 3(b) hereof.
EFFECTIVENESS DEADLINE: As defined in Section 3(a) and 4(a)
hereof.
EXCHANGE ACT: The U.S. Securities Exchange Act of 1934, as
amended.
EXCHANGE NOTES: The Company's 7-3/4% Senior Subordinated Notes
due 2014, registered under the Act, to be issued pursuant to the Indenture (a)
in the Exchange Offer or (b) as contemplated by Section 4 hereof.
EXCHANGE OFFER: The exchange and issuance by the Company of a
principal amount of Exchange Notes (which shall be registered pursuant to the
Exchange Offer Registration Statement) equal to the outstanding principal amount
of Notes that are tendered by such Holders in connection with such exchange and
issuance.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration
Statement relating to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial
Purchasers propose to sell the Notes to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Act, pursuant to
Regulation S under the Act and to a limited number of "accredited investors," as
such term is defined in Rule 501(a)(3), (4), (5), (6) or (7) under the Act.
FILING DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
HOLDERS: As defined in Section 2 hereof.
INTEREST PAYMENT DATE: As defined in the Notes and the
Exchange Notes.
PERSON: As defined in the Indenture.
PROSPECTUS: The prospectus included in a Registration
Statement at the time such Registration Statement is declared effective, 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.
RECOMMENCEMENT DATE: As defined in Section 6(e) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the
Company and the Guarantors relating to (a) an offering of Exchange Notes and
related Subsidiary Guarantees 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) that is filed pursuant to the
provisions of this Agreement and (ii) including the Prospectus included therein,
all amendments and supplements thereto (including post-effective amendments) and
all exhibits and material incorporated by reference therein.
REGULATION S: Regulation S promulgated under the Act.
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RULE 144: Rule 144 promulgated under the Act.
SHELF REGISTRATION STATEMENT: As defined in Section 4(a)
hereof.
SUBSIDIARY GUARANTEES: The guarantees of the Notes and
Exchange Notes of the Guarantors under the Indenture, as amended from time to
time.
SUSPENSION NOTICE: As defined in Section 6(e) hereof.
TIA: The U.S. Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: (a) Each Note, and the related
Subsidiary Guarantees, until the earliest to occur of (i) the date on which such
Note has been exchanged by a Person other than a Broker-Dealer for an Exchange
Note in the Exchange Offer and is entitled to be resold to the public by such
Person without complying with the prospectus delivery requirements of the Act,
(ii) the date on which such Note has been effectively registered under the Act
and disposed of in accordance with the Shelf Registration Statement, or (iii)
the date on which such Note is eligible to be distributed to the public pursuant
to Rule 144 under the Act, and (b) each Exchange Note and the related Subsidiary
Guarantees acquired by a Broker-Dealer in the Exchange Offer of a Note for such
Exchange Note, until 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.
SECTION 2. HOLDERS
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) The Company and the Guarantors shall (i) cause the
Exchange Offer Registration Statement to be filed with the Commission as soon as
practicable after the Closing Date, but in no event later than 90 days after the
Closing Date (such 90th day being the "FILING DEADLINE"), (ii) use their
commercially reasonable efforts to cause such Exchange Offer Registration
Statement to become effective at the earliest possible time, but in no event
later than 180 days after the Closing Date (such 180th day being the
"EFFECTIVENESS DEADLINE"), (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Exchange Offer Registration Statement as may be
necessary in order to cause it to become effective, (B) file, if applicable, a
post-effective amendment to such Exchange Offer Registration Statement pursuant
to Rule 430A under the Act and (C) cause all necessary filings, if any, 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, and (iv) upon the effectiveness of such
Exchange Offer Registration Statement, unless the Exchange Offer shall not be
permitted by applicable law or Commission policy, use their commercially
reasonable efforts to commence and Consummate the Exchange Offer. The Exchange
Offer shall be on the appropriate form permitting (I) registration of the
Exchange Notes to be offered in exchange for the Notes that are Transfer
Restricted Securities and (II) resales of Exchange Notes by Broker-Dealers that
tendered into the Exchange Offer Notes that such Broker-Dealer acquired for its
own account as a result of market making activities or other trading activities
(other than Notes acquired directly from the Company or any its Affiliates) as
contemplated by Section 3(c) below.
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(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 20 business days. 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 on the earliest practicable date
after the Exchange Offer Registration Statement has become effective, but in no
event (unless required by federal securities laws) later than 30 business days
thereafter (such 30th business day being the "CONSUMMATION DEADLINE").
(c) The Company and the Guarantors shall include a "Plan of
Distribution" section in the Prospectus contained in the Exchange Offer
Registration Statement and indicate therein that any Broker-Dealer who holds
Transfer Restricted Securities that were acquired for the account of such
Broker-Dealer as a result of market-making activities or other trading
activities (other than Notes acquired directly from the Company or any Affiliate
of the Company), may exchange such Transfer Restricted Securities pursuant to
the Exchange Offer. Such "Plan of Distribution" section shall also contain all
other information with respect to such sales by such Broker-Dealers that the
Commission may require in order to permit such sales pursuant thereto, but such
"Plan of Distribution" shall not name any such Broker-Dealer or disclose the
amount of Transfer Restricted Securities 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.
Because such Broker-Dealer may be deemed to be an
"underwriter" within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with its initial
sale of any Exchange Notes received by such Broker-Dealer in the Exchange Offer,
the Company and the Guarantors shall permit the use of the Prospectus contained
in the Exchange Offer Registration Statement by such Broker-Dealer to satisfy
such prospectus delivery requirement. To the extent necessary to ensure that the
prospectus contained in the Exchange Offer Registration Statement is available
for sales of Exchange Notes by Broker-Dealers, the Company and the Guarantors
agree to use their commercially reasonable efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented, amended and current
as required by and subject to the provisions of Section 6(a) and (c) hereof and
in conformity with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of one year from the date on which the Exchange Offer is Consummated or
such shorter period as will terminate when all Transfer Restricted Securities
covered by such Registration Statement have been sold pursuant thereto. The
Company shall provide sufficient copies of the latest version of such Prospectus
to such Broker-Dealers, promptly upon request, and in no event later than one
day after such request, at any time during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company and the Guarantors
are not required to file the Exchange Offer Registration Statement, (ii) the
Exchange Offer is not permitted by applicable law or Commission policy (after
the Company and the Guarantors have complied with the procedures set forth in
Section 6(a)(i) hereof) or (iii) if any Holder of Transfer Restricted Securities
shall notify the Company prior to the 20th business day following the
Consummation of the Exchange Offer that (A) such Holder was prohibited by
applicable law or Commission policy from participating in the Exchange Offer or
(B) such Holder may not resell the Exchange Notes acquired by it in the Exchange
Offer to the public without delivering a prospectus and the Prospectus contained
in the Exchange Offer Registration Statement is not
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appropriate or available for such resales by such Holder or (C) such Holder is a
Broker-Dealer and holds Notes acquired directly from the Company or any of its
Affiliates or (D) if the Company otherwise receives a written request from the
Holders set forth on Schedule B hereto, then the Company and the Guarantors
shall:
(I) use their commercially reasonable efforts to cause to be
filed, on or prior to 30 days after the earlier of (x) the date on which the
Company determines that the Exchange Offer Registration Statement is not
required to be filed or cannot be filed as a result of clause (a)(i) or (a)(ii)
of this Section and (y) the date on which the Company receives the notice
specified in clause (a)(iii) of this Section (the 30th day after such earlier
date, the "FILING DEADLINE"), a shelf registration statement pursuant to Rule
415 under the Act (which may be an amendment to the Exchange Offer Registration
Statement (the "SHELF REGISTRATION STATEMENT")), relating to all Transfer
Restricted Securities; and
(II) use their commercially reasonable efforts to cause such
Shelf Registration Statement to become effective at the earliest possible time,
but in no event later than on or prior to 90 days after the Filing Deadline for
the Shelf Registration Statement (such 90th day the "EFFECTIVENESS DEADLINE").
If, after the Company has and the Guarantors have filed an
Exchange Offer Registration Statement that satisfies the requirements of Section
3(a) above, the Company is and the Guarantors are required to file and make
effective a Shelf Registration Statement solely because the Exchange Offer is
not permitted under applicable federal law (i.e., clause (a)(ii) of this
Section), then the filing of the Exchange Offer Registration Statement shall be
deemed to satisfy the requirements of clause (I) above; provided that, in such
event, the Company and the Guarantors shall remain obligated to meet the
Effectiveness Deadline set forth in clause (II) above.
To the extent necessary to ensure that the Shelf Registration
Statement is available for sales of Transfer Restricted Securities by the
Holders thereof entitled to the benefit of this Section 4(a) and the other
securities required to be registered therein pursuant to Section 6(b)(ii)
hereof, the Company and the Guarantors shall use their commercially reasonable
efforts to keep any Shelf Registration Statement required by this Section 4(a)
continuously effective, supplemented, amended and current as required by and
subject to the provisions of Sections 6(b) and (c) hereof and in conformity with
the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of at
least two years (as extended pursuant to Section 6(c)(i)hereof) following the
Closing Date, or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Shelf Registration Statement have been
sold pursuant thereto.
(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 days after receipt of a written
request therefor, the information specified in Item 507 or 508 of Regulation
S-K, as applicable, of the Act for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein. No Holder of
Transfer Restricted Securities shall be entitled to additional interest pursuant
to Section 5 hereof unless and until such Holder shall have provided all such
information. By its acceptance of Transfer Restricted Securities, each Holder
agrees to promptly furnish additional information required to be disclosed in
order to make the information previously furnished to the Company by such Holder
not materially misleading.
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SECTION 5. ADDITIONAL INTEREST
If (a) any Registration Statement required by this Agreement
is not filed with the Commission on or prior to the applicable Filing Deadline,
(b) any such Registration Statement has not been declared effective by the
Commission on or prior to the applicable Effectiveness Deadline, (c) the
Exchange Offer has not been Consummated on or prior to the Consummation Deadline
or (d) any Registration Statement required by this Agreement is filed and
declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded immediately by an
additional Registration Statement which becomes effective (each such event
referred to in clauses (a) through (d), a "REGISTRATION DEFAULT"), then the
Company and the Guarantors hereby jointly and severally agree to pay to each
Holder of Transfer Restricted Securities affected thereby additional interest in
an amount equal to $.05 per week per $1,000 in principal amount of Transfer
Restricted Securities held by such Holder for the first 90-day period
immediately following the occurrence of such Registration Default. The amount of
the additional interest shall increase by an additional $.05 per week per $1,000
in principal amount of Transfer Restricted Securities with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up to
a maximum amount of additional interest of $.50 per week per $1,000 in principal
amount of Transfer Restricted Securities; provided that the Company and the
Guarantors shall in no event be required to pay additional interest for more
than one Registration Default at any given time. Notwithstanding anything to the
contrary set forth herein, (i) upon filing of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement), in the case
of (a) above, (ii) upon the effectiveness of the Exchange Offer Registration
Statement (and/or, if applicable the Shelf Registration Statement), in the case
of (b) above, (iii) upon Consummation of the Exchange Offer, in the case of (c)
above, or (iv) upon the filing of a post-effective amendment to the Registration
Statement or an additional Registration Statement that causes the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration Statement)
to again be declared effective or made usable, in the case of (d) above, the
additional interest payable with respect to the Transfer Restricted Securities
as a result of such clause (a), (b), (c) or (d), as applicable, shall cease.
All accrued additional interest 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 and the Exchange Notes. Notwithstanding the fact that
any securities for which additional interest are due cease to be Transfer
Restricted Securities, all obligations of the Company and the Guarantors to pay
additional interest with respect to securities shall survive until such time as
such obligations with respect to such securities 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 (i) comply with all
applicable provisions of Section 6(c) below, (ii) use their commercially
reasonable efforts to effect such exchange and to permit the resale of Exchange
Notes by any Broker-Dealer that tendered Notes in the Exchange Offer that such
Broker-Dealer acquired for its own account as a result of its market making
activities or other trading activities (other than Notes acquired directly from
the Company or any of its Affiliates) being sold in accordance with the intended
method or methods of distribution thereof, and (iii) comply with all of the
following provisions:
(A) If, following the date hereof there has been announced a
change in Commission policy with respect to exchange offers such as the
Exchange Offer, that in the reasonable opinion of counsel to the
Company raises a substantial question as to whether the Exchange Offer
is permitted by applicable federal law, the Company and the Guarantors
hereby agree 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 Transfer Restricted Securities.
The
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Company and the Guarantors hereby agree to pursue the issuance of such
a decision to the Commission staff level. In connection with the
foregoing, the Company and the Guarantors hereby agree to take all such
other actions as may be requested by the Commission or otherwise
required in connection with the issuance of such decision, including
without limitation (I) participating in telephonic conferences with the
Commission staff, (II) delivering to the Commission staff an analysis
prepared by counsel to the Company setting forth the legal bases, if
any, upon which such counsel has concluded that such an Exchange Offer
should be permitted and (III) diligently pursuing a resolution (which
need not be favorable) by the Commission staff.
(B) As a condition to its participation in the Exchange Offer,
each Holder of Transfer Restricted Securities (including, without
limitation, any Holder who is a Broker-Dealer) shall furnish, upon the
request of the Company, prior to the Consummation of the Exchange
Offer, a written representation 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 (I) it is
not an Affiliate of the Company, (II) 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 (III) it is acquiring the Exchange
Notes in its ordinary course of business. Each Holder using the
Exchange Offer to participate in a distribution of the Exchange Notes
will be required to acknowledge and agree that, if the resales are of
Exchange Notes obtained by such Holder in exchange for Notes acquired
directly from the Company or an Affiliate thereof, it (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 (including, if applicable, any no-action
letter obtained pursuant to clause (A) above), and (2) must comply with
the registration and prospectus delivery requirements of the 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
(C) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company and the Guarantors shall provide a supplemental
letter to the Commission (I) stating that the Company and the
Guarantors are registering the Exchange Offer in reliance on the
position of the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and, if applicable, any
no-action letter obtained pursuant to clause (A) above, (II) including
a representation that neither the Company nor any Guarantor has entered
into any arrangement or understanding with any Person to distribute the
Exchange Notes to be received in the Exchange Offer and that, to the
best of the Company's and each Guarantor's information and belief, each
Holder participating in the Exchange Offer is acquiring the Exchange
Notes in its ordinary course of business and has no arrangement or
understanding with any Person to participate in the distribution of the
Exchange Notes received in the Exchange Offer and (III) any other
undertaking or representation required by the Commission as set forth
in any no-action letter obtained pursuant to clause (A) above, if
applicable.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Guarantors shall:
(i) comply with all the provisions of Section 6(c)
and (d) below and use their commercially reasonable efforts to effect such
registration to permit the sale of the Transfer
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Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof (as indicated in the information furnished to
the Company pursuant to Section 4(b) hereof), and pursuant thereto the Company
and the Guarantors will prepare and file with the Commission a Registration
Statement relating to the registration on any appropriate form under the Act,
which form shall be available for the sale of the Transfer Restricted Securities
in accordance with the intended method or methods of distribution thereof within
the time periods and otherwise in accordance with the provisions hereof; and
(ii) issue, upon the request of any Holder or
purchaser of Notes covered by any Shelf Registration Statement contemplated by
this Agreement, Exchange Notes having an aggregate principal amount equal to the
aggregate principal amount of Notes sold pursuant to the Shelf Registration
Statement and surrendered to the Company for cancellation; the Company and the
Guarantors shall register Exchange Notes and the related Subsidiary Guarantees
on the Shelf Registration Statement for this purpose and issue the Exchange
Notes to the purchaser(s) of securities subject to the Shelf Registration
Statement in the names as such purchaser(s) shall designate.
(c) General Provisions. In connection with any Registration
Statement and any related Prospectus required by this Agreement, 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 for the period specified in Section 3 or 4 hereof, as
applicable. Upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain an
untrue statement of material fact or omit to state any material fact necessary
to make the statements therein not misleading 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 an
appropriate amendment to such Registration Statement curing such defect, and, if
Commission review is required, use their commercially reasonable efforts to
cause such amendment to be declared effective as soon as practicable. If at any
time the Commission shall issue any stop order suspending the effectiveness of
any Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities under state
securities or Blue Sky laws, the Company and the Guarantors shall use their
commercially reasonable efforts to obtain the withdrawal or lifting of such
order at the earliest possible time;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the applicable Registration
Statement as may be necessary to keep such Registration Statement effective for
the applicable period set forth in Section 3 or 4 hereof, as the case may be;
cause the Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 under the Act, and to
comply fully with Rules 424, 430A and 462, as applicable, under the Act in a
timely manner; and comply with the provisions of the 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) in connection with any sale of Transfer
Restricted Securities that will result in such securities no longer being
Transfer Restricted Securities, cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and to register
such Transfer Restricted Securities in such denominations and such names as the
selling Holders may request at least two business days prior to such sale of
Transfer Restricted Securities;
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(iv) use their commercially reasonable efforts to
cause the disposition of 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 to consummate the disposition of such Transfer Restricted
Securities; provided, however, that neither the Company nor any Guarantor shall
be required to register or qualify as a foreign corporation where it is not now
so qualified or to take any action that would subject it to the service of
process in suits or to taxation, other than as to matters and transactions
relating to the Registration Statement, in any jurisdiction where it is not now
so subject;
(v) provide a CUSIP number for all Transfer
Restricted Securities not later than the effective date of a Registration
Statement covering such Transfer Restricted Securities and provide the Trustee
under the Indenture with certificates for the Transfer Restricted Securities
which are in a form eligible for deposit with The Depository Trust Company;
(vi) 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 with regard to any
applicable Registration Statement, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which need not be
audited) covering a twelve-month period beginning after the effective date of
the registration statement (as such term is defined in paragraph (c) of Rule 158
under the Act); and
(vii) cause the Indenture to be qualified under the
TIA not later than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith, cooperate with the
Trustee and the Holders to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance with the terms of
the TIA; and 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.
(d) Additional Provisions Applicable to Shelf Registration
Statements and Certain Exchange Offer Prospectuses. In connection with each
Shelf Registration Statement, and each Exchange Offer Registration Statement if
and to the extent that an Initial Purchaser has notified the Company that it is
a holder of Transfer Restricted Securities (for so long as such Notes are
Transfer Restricted Securities or for the period provided in Section 3 hereof,
whichever is shorter), with respect to any Holder selling pursuant to the Shelf
Registration Statement or with respect to any such Initial Purchaser, the
Company and the Guarantors shall:
(i) advise such Holder promptly and, if requested by
such Holder, 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 applicable 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 Act or of the suspension
by any state securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any statement of
a material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes in
the Registration Statement in order to make the statements therein not
misleading, or that requires the making
10
of any additions to or changes in the Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) if any fact or event contemplated by Section
6(d)(i)(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, in the light of the circumstances under which they were
made, not misleading;
(iii) furnish to such Holder in connection with such
exchange or sale, if any, before filing with the Commission, copies of any
Registration Statement or any Prospectus included therein (except the Prospectus
included in the Exchange Offer Registration Statement at the time it was
declared effective) 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 and comment of such Holders in connection with such sale,
if any, for a period of at least five business days, and the Company 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 such Holders shall reasonably
object within five business days after the receipt thereof, or if such
Registration Statement, amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains an untrue statement of a material fact or omits
to state any material fact necessary to make the statements therein not
misleading or fails to comply with the applicable requirements of the Act;
(iv) 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, upon request, to such Holder in
connection with such exchange or sale, if any, make the Company's and the
Guarantors' representatives reasonably 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 Holders may reasonably request;
(v) make available, at reasonable times, for
inspection by such Holder and any attorney or accountant retained by such
Holders, all financial and other records, pertinent corporate documents of the
Company and the Guarantors and cause the Company's and the Guarantors' officers,
directors and employees to supply all information reasonably requested by any
such Holder, attorney or accountant in connection with such Registration
Statement or any post-effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness;
(vi) if requested by any such Holders in connection
with such exchange or sale, promptly include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if necessary,
such information as such Holders may reasonably request to have included
therein, including, without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities; and make all required
filings of such Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be included in such
Prospectus supplement or post-effective amendment;
(vii) furnish to such Holder in connection with such
exchange or sale without charge, at least one copy of the Registration
Statement, as first filed with the Commission, and of each amendment thereto,
including all documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
11
(viii) deliver to such Holder without charge, as many
copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Holder 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 selling Holder in
connection with the offering and the sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement thereto;
(ix) upon the request of any such Holder, enter into
such agreements (including underwriting agreements) and make such reasonable and
customary representations and warranties and take all such other reasonable
actions in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any applicable
Registration Statement contemplated by this Agreement as may be reasonably
requested by any such Holder in connection with any sale or resale pursuant to
any applicable Registration Statement. In such connection, the Company and the
Guarantors shall:
(A) upon request of such Holder, furnish (or in the case of
paragraphs (2) and (3), use their commercially reasonable efforts to
cause to be furnished) to each such Holder, upon Consummation of the
Exchange Offer or upon the effectiveness of the Shelf Registration
Statement, as the case may be:
(1) a certificate, dated such date, signed on behalf of the
Company and each Guarantor by (x) the President or any Vice President
and (y) a principal financial or accounting officer of the Company and
such Guarantor, confirming, as of the date thereof, the matters set
forth in Sections 7(i) and (k) of the Purchase Agreement and such other
similar matters as such Holders may reasonably request;
(2) an opinion, dated the date of Consummation of the Exchange
Offer or the date of effectiveness of the Shelf Registration Statement,
as the case may be, of counsel for the Company and the Guarantors
covering matters set forth in Sections 7(a) and (b) of the Purchase
Agreement and such other matters as such Holder may reasonably request,
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 and has
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, no facts came
to such counsel's attention that caused such counsel to believe that
the applicable Registration Statement, at the time such Registration
Statement or any post-effective amendment thereto became effective and,
in the case of the Exchange Offer Registration Statement, as of the
date of Consummation of the Exchange Offer, 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
Registration Statement as of its date and, in the case of the opinion
dated the date of Consummation of the Exchange Offer, as of the date of
Consummation, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the 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 Registration Statement contemplated by this
Agreement or the related Prospectus; and
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(3) a customary comfort letter, dated the date of Consummation
of the Exchange Offer, or as of the date of effectiveness of the Shelf
Registration Statement, as the case may be, from the Company's
independent accountants, in the customary form and covering matters of
the type customarily covered in comfort letters to underwriters in
connection with underwritten offerings, and affirming the matters set
forth in the comfort letters delivered pursuant to Section 7(d) of the
Purchase Agreement; and
(B) deliver such other documents and certificates as may be
reasonably requested by the selling Holders to evidence compliance with
the matters covered in clause (A) above and with any customary
conditions contained in any agreement entered into by the Company and
the Guarantors pursuant to this clause (ix);
(x) prior to any public offering of Transfer
Restricted Securities, cooperate with the selling Holders and their 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 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 applicable 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 now 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 now so subject; and
(xi) provide promptly to each such Holder, upon
request, each document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act.
(e) Restrictions on Holders. Each Holder's acquisition of a
Transfer Restricted Security constitutes such Holder's agreement that, upon
receipt of the notice referred to in Section 6(d)(i)(C) or any notice from the
Company of the existence of any fact of the kind described in Section 6(d)(i)(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 (i) such Holder has received copies of
the supplemented or amended Prospectus contemplated by Section 6(d)(ii) hereof,
or (ii) such Holder is advised in writing 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 (in
each case, the "RECOMMENCEMENT DATE"). Each Holder receiving a Suspension Notice
shall be required to either (I) destroy any Prospectuses, other than permanent
file copies, then in such Holder's possession that have been replaced by the
Company with a more recently dated Prospectus or (II) deliver to the Company (at
the Company's expense) all copies, other than permanent file copies, then in
such Holder's possession of the Prospectuses covering such Transfer Restricted
Securities that was current at the time of receipt of the Suspension 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 a number of days
equal to the number of days in the period from and including the date of
delivery of the Suspension Notice to the date of delivery of the Recommencement
Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Guarantors'
performance of or compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses; (ii) all
fees and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including 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
13
disbursements of counsel for the Company, the Guarantors and one counsel for the
Holders of Transfer Restricted Securities (which shall be Xxxxxxx Xxxxxxx &
Xxxxxxxx LLP or such other counsel as may be selected by a majority of such
Holders); (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 hereof; and (vi) all fees and disbursements of
independent certified public accountants of the Company and the Guarantors
(including the expenses of any special audit and comfort letters required by or
incident to such performance).
The Company will, in any event, bear its and the Guarantors'
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 or 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), the Company and the Guarantors
will reimburse the Initial Purchasers and the Holders of Transfer Restricted
Securities who are tendering Notes into in the Exchange Offer and/or selling or
reselling Notes or Exchange Notes pursuant to the "Plan of Distribution"
contained in the Exchange Offer Registration Statement or the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements of not more
than one counsel (who shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP unless another
firm shall 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).
(c) Notwithstanding Sections 7(a) and (b), the Company and the
Guarantors shall not be obligated to reimburse any Holder set forth on Schedule
B hereto for any such fees or expenses incurred with respect to the inclusion by
any such Holder of Transfer Restricted Securities in a Shelf Registration
Statement and each such Holder shall be responsible to reimburse the Company and
the Guarantors for their portion of any such fees and expenses (calculated on a
pro rata basis in accordance with the amount of Transfer Restricted Securities
so included by each Holder).
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors agree, jointly and
severally, to indemnify and hold harmless each Holder, its directors, officers
and each Person, if any, who controls such Holder (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act), from and against any and all
losses, claims, damages, liabilities or judgments (including without limitation,
any legal or other expenses incurred in connection with investigating or
defending any matter, including any action that could give rise to any such
losses, claims, damages, liabilities or judgments) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, preliminary prospectus or Prospectus (or any amendment
or supplement thereto) provided by the Company to any Holder or any prospective
purchaser of Exchange Notes or registered Notes, or caused by any omission
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 judgments are caused by an untrue
statement or omission or alleged untrue statement or omission that is based upon
information relating to such Holder furnished in writing to the Company by such
Holder.
(b) By its acquisition of Transfer Restricted Securities, 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 and officers, and each person, if any, who controls (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) the Company
or the Guarantors to the same extent as the foregoing indemnity from the Company
and the Guarantors set forth in Section
14
8(a) hereof, but only with reference to information relating to such Holder
furnished in writing to the Company by such Holder expressly for use in any
Registration Statement. In no event shall any Holder, its directors, officers or
any Person who controls such Holder be liable or responsible for any amount in
excess of the amount by which the total amount received by such Holder with
respect to its sale of Transfer Restricted Securities pursuant to a Registration
Statement exceeds (i) the amount paid by such Holder for such Transfer
Restricted Securities and (ii) the amount of any damages that such Holder, its
directors, officers or any Person who controls such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
(c) In case any action shall be commenced involving any Person
in respect of which indemnity may be sought pursuant to Section 8(a) or (b)
hereof (the "INDEMNIFIED PARTY"), the indemnified party shall promptly notify
the Person against whom such indemnity may be sought (the "INDEMNIFYING PERSON")
in writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 8(a) and (b) hereof, a Holder shall not be
required to assume the defense of such action pursuant to this Section 8(c), but
may employ separate counsel and participate in the defense thereof, but the fees
and expenses of such counsel, except as provided below, shall be at the expense
of the Holder). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by a majority of the Holders, in the case of the parties indemnified,
pursuant to Section 8(a) hereof, and by the Company and the Guarantors, in the
case of parties indemnified, pursuant to Section 8(b) hereof. The indemnifying
party shall indemnify and hold harmless the indemnified party from and against
any and all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action (A) effected with its written consent or (B) effected
without its written consent if the settlement is entered into more than 20
business days after the indemnifying party shall have received a request from
the indemnified party for reimbursement for the fees and expenses of counsel (in
any case where such fees and expenses are at the expense of the indemnifying
party) and, prior to the date of such settlement, the indemnifying party shall
have failed to comply with such reimbursement request. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or could have
been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (I) includes an unconditional release of the indemnified
party from all liability on claims that are or could have been the subject
matter of such action 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 party.
15
(d) To the extent that the indemnification provided for in
this Section 8 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
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 judgments (i) 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 sale by the Issuer of Transfer Restricted Securities (or in the case of
Exchange Notes that are Transfer Restricted Securities, the sale of the Notes
for which such Exchange Notes were exchanged) or (ii) if the allocation provided
by clause 8(d)(i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in such
clause 8(d)(i) but also the relative fault of the Company and the Guarantors, on
the one hand, and of the Holder, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative fault of the Company and the Guarantors, on the one
hand, and of the Holder, on the other hand, 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 such Guarantor, on the one hand, or by
the Holder, on the other hand, 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 judgments referred to above shall be deemed to
include, subject to the limitations set forth in Section 8(c) hereof, any legal
or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Company, the Guarantors and, by its acquisition of
Transfer Restricted Securities, each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) 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 judgments 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 matter, including any
action that could have given rise to such losses, claims, damages, liabilities
or judgments. Notwithstanding the provisions of this Section 8, no Holder, its
directors, its officers or any Person, if any, who controls such Holder shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the total received by such Holder with respect to the sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities and (ii) the
amount of any damages which such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 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(d) are several in
proportion to the respective principal amount of Transfer Restricted Securities
held by each Holder hereunder and not joint.
SECTION 9. RULE 144A AND RULE 144
The Company and each Guarantor agrees with each Holder, for so
long as any Transfer Restricted Securities remain outstanding and during any
period in which the Company or such Guarantor (a) is not subject to Section 13
or 15(d) of the Exchange Act, to make available, upon request of any Holder, or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
designated by such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Act in order to permit resales of such
16
Transfer Restricted Securities pursuant to Rule 144A, and (b) is subject to
Section 13 or 15(d) of the Exchange Act, to make all filings required thereby in
a timely manner in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144.
SECTION 10. FUTURE PARTIES
If, prior to the Consummation of the Exchange Offer or prior
to the effectiveness of the Shelf Registration Statement, as the case may be,
(i) the Company merges with or into another Person in accordance with the terms
and provisions of the Indenture, such Person shall execute and deliver to the
parties hereto a joinder agreement to this Agreement substantially in the form
attached hereto as Exhibit A and such Person shall be bound by all the
provisions of this Agreement as the "Company," or (ii) any subsidiary of the
Company executes a Subsidiary Guarantee in accordance with the terms and
provisions of the Indenture, the Company shall cause such subsidiary to execute
and deliver to the parties hereto a a joinder agreement to this Agreement
substantially in the form attached hereto as Exhibit A and such subsidiary shall
be bound by all the provisions of this Agreement as a "Guarantor." It is hereby
acknowledged that upon the Merger Closing, K&F Industries, Inc. and each of the
parties listed on Schedule A hereto to will become a party to this Agreement by
executing and delivering a joinder agreement to this Agreement substantially in
the form attached hereto as Exhibit A.
SECTION 11. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors acknowledge and
agree that any failure by the Company and/or the Guarantors to comply with their
respective obligations under Sections 3 and 4 hereof may result in material
irreparable injury to the Initial Purchasers or the Holders for which there is
no adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company's and the Guarantor's obligations under
Sections 3 and 4 hereof. The Company and the Guarantors further agree to waive
the defense in any action for specific performance that a remedy at law would be
adequate.
(b) No Inconsistent Agreements. The Company and the Guarantors
will not, on or after the date of this Agreement, enter into any agreement with
respect to their respective securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. The Company and the Guarantors have not previously entered
into any agreement granting any registration rights with respect to their
respective securities to any Person that would require such securities to be
included in any Registration Statement filed hereunder. 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 and the Guarantors'
securities under any agreement in effect on the date hereof.
(c) 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 (i) in the case of
Section 5 hereof and this Section 11(c)(i), the Company has obtained the written
consent of Holders of all outstanding Transfer Restricted Securities and (ii) in
the case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Company or its Affiliates). Notwithstanding the foregoing, a waiver of or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose Transfer Restricted Securities are being tendered
pursuant to the Exchange Offer, and that does not affect directly or indirectly
the rights of other Holders whose Transfer Restricted 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
subject to such Exchange Offer.
17
(d) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent they may
deem such enforcement necessary or advisable to protect their rights hereunder.
(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), 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 or any of the Guarantors:
c/o K&F Industries Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000)
All such notices and communications shall be deemed to have
been duly given at the time delivered by hand, when receipt is acknowledged, if
telecopied; and on the next business day, if timely delivered to an air courier
guaranteeing overnight delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address specified in the Indenture.
(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; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Transfer Restricted
Securities in violation of the terms hereof or of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Transfer Restricted
Securities in any manner, whether by operation of law or otherwise, such
Transfer Restricted Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Transfer Restricted Securities such
Person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such Person shall be entitled to receive the benefits hereof.
(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.
(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
18
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 with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
[Signature Pages to Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
K&F ACQUISITION, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Secretary
XXXXXX BROTHERS INC.
XXXXXXX, XXXXX & CO.
CITIGROUP GLOBAL MARKETS INC.
X.X. XXXXXX SECURITIES INC.
By: XXXXXX BROTHERS INC.
By: /s/ [signature illegible]
------------------------------------
Authorized Representative
By: XXXXXXX, SACHS & CO.
By: /s/ Xxxxxxx Xxxxx & Co.
------------------------------------
(Xxxxxxx Sachs & Co.)
On behalf of each of the Initial Purchasers
EXHIBIT A
[Form of Joinder to Registration Rights Agreement]
___________ __, 20__
Xxxxxx Brothers Inc.
Xxxxxxx, Sachs & Co.
Citigroup Global Markets Inc.
X.X. Xxxxxx Securities Inc.
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Registration Rights Agreement (the
"REGISTRATION RIGHTS AGREEMENT") dated as of November 18, 2004 among K&F
Acquisition, Inc., a Delaware corporation (the "ISSUER") and Xxxxxx Brothers
Inc., Xxxxxxx, Sachs & Co., Citigroup Global Markets Inc. and X.X. Xxxxxx
Securities Inc. (collectively, the "INITIAL PURCHASERS") concerning the purchase
of the Notes (as defined in the Registration Rights Agreement) from the Issuer
by the several Initial Purchasers. Capitalized terms used herein but not defined
herein shall have the meanings assigned to such terms in the Registration Rights
Agreement.
[___________](1) (the "SUCCESSOR COMPANY") and
[___________],[___________] and [___________] (the "GUARANTORS") agree that this
letter agreement is being executed and delivered in connection with the issue
and sale of the Notes pursuant to the Purchase Agreement.
1. Joinder of the Successor Company. The Successor Company
hereby agrees to become bound by the terms, conditions and other provisions of
the Registration Rights Agreement with all attendant rights, duties and
obligations stated therein, with the same force and effect as if originally
named as the Company therein and as if such party executed the Registration
Rights Agreement on the date thereof.
2. Joinder of the Guarantors. Each of the Guarantors hereby
agrees to become bound by the terms, conditions and other provisions of the
Registration Rights Agreement with all attendant rights, duties and obligations
stated therein, with the same force and effect as if originally named as a
Guarantor therein and as if such party executed the Registration Rights
Agreement on the date thereof.
3. Governing Law. THIS LETTER AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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(1) Insert name of Person, if any, that the Company merges with or into in
accordance with the terms and provisions of the Indenture.
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4. Counterparts. This letter 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.
5. Amendments. No amendment or waiver of any provision of this
letter agreement, nor any consent or approval to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
parties hereto.
6. Headings. The headings in this letter agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
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If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us a counterpart hereof, whereupon this
letter agreement will become a binding agreement between the Successor Company,
the Guarantors party hereto and the several Initial Purchasers in accordance
with its terms.
Very truly yours,
[SUCCESSOR COMPANY]
By:_________________________________
Name:
Title:
GUARANTORS:
[GUARANTOR]
By:_________________________________
Name:
Title:
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Accepted: ____________ __, 20__
XXXXXX BROTHERS INC.
XXXXXXX, XXXXX & CO.
CITIGROUP GLOBAL MARKETS INC.
X.X. XXXXXX SECURITIES INC.
By: XXXXXX BROTHERS INC.
By: _____________________________________
Authorized Representative
By: XXXXXXX, SACHS & CO.
By:______________________________________
(Goldman, Schs & Co.)
On behalf of each of the Initial Purchasers
