EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
by and among
RAYOVAC CORPORATION
and
THE GUARANTORS LISTED ON SCHEDULE A HERETO
and
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
ABN AMRO INCORPORATED
Dated as of September 30, 2003
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of September 30, 2003, by and among Rayovac Corporation, a
Wisconsin corporation (the "Company"), and the guarantors listed on Schedule A
hereto (the "Guarantors"), and Banc of America Securities LLC, Citigroup Capital
Markets Inc. and ABN AMRO Incorporated (each an "Initial Purchaser" and,
collectively, the "Initial Purchasers"), each of whom has agreed to purchase the
Company's 8 1/2% Senior Subordinated Notes due 2013 (the "Initial Notes")
pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated as of
September 26, 2003 (the "Purchase Agreement"), by and among the Company, the
Guarantors and the Initial Purchasers (i) for the benefit of each Initial
Purchaser and (ii) for the benefit of the holders from time to time of the Notes
(including each Initial Purchaser). In order to induce the Initial Purchasers to
purchase the Initial Notes, the Company has agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of this Agreement
is a condition to the obligations of the Initial Purchasers set forth in Section
5(h) of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
Business Day: Any day except a Saturday, Sunday or other day that in
the City of New York, or in the city of the corporate trust office of the
Trustee, banks are authorized to close.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A registered Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Securities Act of the Exchange Offer Registration
Statement relating to the Exchange Notes to be issued in the Exchange Offer,
(ii) the maintenance of such Registration Statement continuously effective and
the keeping of the Exchange Offer open for a period not less than the minimum
period required pursuant to Section 3(b) hereof, and (iii) the delivery by the
Company to the Registrar under the Indenture of Exchange Notes in the same
aggregate principal amount as the aggregate principal amount of Initial Notes
that were tendered by Holders thereof pursuant to the Exchange Offer.
Effectiveness Target Date: As defined in Section 5 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: The 8 1/2% Senior Subordinated Notes due 2013, of the
same series under the Indenture as the Initial Notes, to be issued to Holders in
exchange for Transfer Restricted Securities pursuant to this Agreement.
Exchange Offer: The registration by the Company under the Securities
Act of the Exchange Notes pursuant to a Registration Statement pursuant to which
the Company offers the
Holders of all outstanding Transfer Restricted Securities the opportunity to
exchange all such outstanding Transfer Restricted Securities held by such
Holders for Exchange Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities tendered in
such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers
propose to sell the Initial Notes to certain "qualified institutional buyers,"
as such term is defined in Rule 144A under the Securities Act, and to certain
non-U.S. persons pursuant to Regulation S under the Securities Act.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of September 30, 2003, among the
Company, the Guarantors and U.S. Bank, National Association, as trustee (the
"Trustee"), pursuant to which the Notes are to be issued, as such Indenture is
amended or supplemented from time to time in accordance with the terms thereof.
Initial Notes: As defined in the preamble hereto.
Initial Placement: The issuance and sale by the Company of the Initial
Notes to the Initial Purchasers pursuant to the Purchase Agreement.
Initial Purchaser: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the Notes.
Liquidated Damages: As defined in Section 5 hereof.
Liquidated Damages Payment Date: With respect to the Initial Notes,
each Interest Payment Date.
NASD: National Association of Securities Dealers, Inc.
Notes: The Initial Notes and the Exchange Notes.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
Record Holder: With respect to any Damages Payment Date relating to the
Notes, each Person who is a Holder of Notes on the record date with respect to
the Interest Payment Date on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company
relating to (a) an offering of Exchange Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, in each case, (i) which is filed pursuant to
the provisions of this Agreement and (ii) including the Prospectus
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included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Transfer Restricted Securities: Each Initial Note, until the earliest
to occur of (a) the date on which such Initial Note is exchanged in the Exchange
Offer and entitled to be resold to the public by the Holder thereof without
complying with the prospectus delivery requirements of the Securities Act, (b)
following the exchange by a broker-dealer in the Exchange Offer of a Note for an
Exchange Note, the date on which such Exchange Note is sold to a purchaser who
receives from such broker-dealer on or prior to the date of such sale a copy of
the prospectus contained in the Exchange Offer Registration Statement; (c) the
date on which such Initial Note has been effectively registered under the
Securities Act and disposed of in accordance with a Shelf Registration Statement
and (d) the date on which such Initial Note is distributed to the public
pursuant to Rule 144 under the Securities Act.
Trust Indenture Act: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa 77bbbb) as in effect on the date of the Indenture.
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
SECTION 2. Securities Subject to this Agreement.
(a) Transfer Restricted Securities. The securities subject to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be
a holder of Transfer Restricted Securities (each, a "Holder") whenever such
Person owns Transfer Restricted Securities.
SECTION 3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permissible under applicable
law or Commission policy (after the procedures set forth in Section 6(a) below
have been complied with), the Company and the Guarantors shall (i) cause the
Exchange Offer Registration Statement to be filed with the Commission as soon as
reasonably practicable after the Closing Date, but in no event later than 90
days after the Closing Date, (ii) use their commercially reasonable efforts to
cause the Exchange Offer Registration Statement to become effective as soon as
reasonably practicable, but in no event later than 180 days, after the Closing
Date, (iii) in connection with the foregoing, use their commercially reasonable
efforts to file (A) all pre-effective amendments to such Registration Statement
as may be necessary in order to cause such Exchange Offer Registration Statement
to become effective, (B) if applicable, a post-effective amendment to such
Exchange Offer Registration Statement pursuant to Rule 430A under the Securities
Act and (C) cause all necessary filings in connection with the registration and
qualification of the Exchange Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer and
(iv) upon the effectiveness of such Exchange Offer Registration Statement,
commence the Exchange Offer. The Exchange Offer shall be on the appropriate form
permitting registration of the Exchange Notes to be
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offered in exchange for the Transfer Restricted Securities and to permit resales
of Transfer Restricted Securities held by Broker-Dealers as contemplated by
Section 3(c) below.
(b) The Company and the Guarantors shall use their commercially
reasonable efforts to cause the Exchange Offer Registration Statement to be
effective continuously and shall keep the Exchange Offer open for a period of
not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 30 days after the date notice of the
Exchange Offer is mailed to the Holders. The Company and the Guarantors shall
cause the Exchange Offer to comply with all applicable federal and state
securities laws. No securities other than the Exchange Notes shall be included
in the Exchange Offer Registration Statement. The Company and the Guarantors
shall use their commercially reasonable efforts to cause the Exchange Offer to
be Consummated as soon as reasonably practicable after the Exchange Offer
Registration Statement has become effective, but in no event later than 30
Business Days after the Exchange Offer Registration Statement has become
effective.
(c) The Company and the Guarantors shall indicate in a "Plan of
Distribution" section contained in the Prospectus forming a part of the Exchange
Offer Registration Statement that any Broker-Dealer who holds Initial Notes that
are Transfer Restricted Securities and that were acquired for its own account as
a result of market-making activities or other trading activities (other than
Transfer Restricted Securities acquired directly from the Company), may exchange
such Initial Notes pursuant to the Exchange Offer; however, such Broker-Dealer
may be deemed to be an "underwriter" within the meaning of the Securities Act
and must, therefore, deliver a prospectus meeting the requirements of the
Securities Act in connection with any resales of the Exchange Notes received by
such Broker-Dealer in the Exchange Offer, which prospectus delivery requirement
may be satisfied by the delivery by such Broker-Dealer of the Prospectus
contained in the Exchange Offer Registration Statement. Such "Plan of
Distribution" section shall also contain all other information with respect to
such resales by Broker-Dealers that the Commission may require in order to
permit such resales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Notes held by any such
Broker-Dealer except to the extent required by the Commission as a result of a
change in policy, rules or regulations after the date of this Agreement.
The Company and the Guarantors shall use their commercially reasonable
efforts to keep the Exchange Offer Registration Statement continuously
effective, supplemented and amended as required by the provisions of Section
6(c) below to the extent necessary to ensure that it is available for resales of
Notes acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to ensure that it
conforms with the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period ending on the earlier of (i) 180 days from the date on which
the Exchange Offer Registration Statement is declared effective and (ii) the
date on which a Broker-Dealer is no longer required to deliver a prospectus in
connection with market-making or other trading activities.
The Company and the Guarantors shall provide sufficient copies of the
latest version of such Prospectus to Broker-Dealers promptly upon request at any
time during such 180-day (or shorter as provided in the foregoing sentence)
period in order to facilitate such resales.
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SECTION 4. Shelf Registration.
(a) Shelf Registration. If (i) the Company and the Guarantors are not
required to file an Exchange Offer Registration Statement or to consummate the
Exchange Offer because the Exchange Offer is not permitted by applicable law or
Commission policy (after the procedures set forth in Section 6(a) below have
been complied with) or (ii) any Holder of Transfer Restricted Securities shall
notify the Company in writing prior to the 20th day following the consummation
of the Exchange Offer that (A) such Holder is prohibited by applicable law or
Commission policy from participating in the Exchange Offer, (B) such Holder may
not resell the Exchange Notes acquired by it in the Exchange Offer to the public
without delivering a prospectus and that the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such Holder or (C) such Holder is a Broker-Dealer and holds Initial
Notes acquired directly from the Company or one of its affiliates, then the
Company and the Guarantors shall:
(x) use their commercially reasonable efforts to cause to be
filed a shelf registration statement pursuant to Rule 415 under the
Securities Act, which may be an amendment to the Exchange Offer
Registration Statement (in either event, the "Shelf Registration
Statement"), on or prior to the earliest to occur of (1) the 60th day
after the date on which the Company determines that it not required to
file the Exchange Offer Registration Statement pursuant to clause
(a)(i) above and (2) the 60th day after the date on which the Company
receives notice from a Holder of Transfer Restricted Securities as
contemplated by clause (a)(ii) above (such earliest date being the
"Shelf Filing Deadline"), which Shelf Registration Statement shall
provide for the resale of all Transfer Restricted Securities the
Holders of which shall have provided the information required pursuant
to Section 4(b) hereof; and
(y) use their commercially reasonable efforts to cause such
Shelf Registration Statement to be declared effective by the Commission
on or before the 120th day after the Shelf Filing Deadline.
The Company and the Guarantors shall use their commercially reasonable
efforts to keep such Shelf Registration Statement continuously effective,
supplemented and amended as required by and subject to the provisions of
Sections 6(b) and (c) hereof to the extent necessary to ensure that it is
available for resales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a), and to ensure that it conforms
with the requirements of this Agreement, the Securities Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of at least two years following the Closing Date (or shorter period that
will terminate when all Transfer Restricted Securities covered by such Shelf
Registration Statement have been sold pursuant to such Shelf Registration
Statement).
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 Business Days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. Each Holder as to which any Shelf Registration
Statement is being effected agrees to furnish promptly to the Company all
information required to be disclosed in order to
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make the information previously furnished to the Company by such Holder not
materially misleading.
SECTION 5. LIQUIDATED DAMAGES. If (i) any of the Registration
Statements required by this Agreement is not filed with the Commission on or
prior to the date specified for such filing in this Agreement, (ii) any of such
Registration Statements has not been declared effective by the Commission on or
prior to the date specified for such effectiveness in this Agreement (the
"Effectiveness Target Date"), (iii) the Exchange Offer has not been Consummated
within 30 Business Days after the Effectiveness Target Date with respect to the
Exchange Offer Registration Statement or (iv) subject to Section 6(c)(i), any
Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable for
its intended purpose without being succeeded immediately by a post-effective
amendment to such Registration Statement that cures such failure and that is
itself immediately declared effective (each such event referred to in clauses
(i) through (iv), a "Registration Default"), the Company hereby agrees that the
interest rate borne by the Transfer Restricted Securities shall be increased by
0.25% per annum during the 90-day period immediately following the occurrence of
any Registration Default and shall increase by an additional 0.25% per annum at
the end of each subsequent 90-day period, but in no event shall such increase
exceed 1.00% per annum; provided that the Company and the Guarantors shall in no
event be required to pay such additional interest for more than one Registration
Default at any given time. Such additional interest to be paid pursuant to a
Registration Default is herein referred to as "Liquidated Damages." Following
the cure of any Registration Default relating to any particular Transfer
Restricted Securities, the interest rate borne by the relevant Transfer
Restricted Securities will be reduced to the original interest rate borne by
such Transfer Restricted Securities; provided, however, that, if after any such
reduction in interest rate, a different Registration Default exists or occurs,
the interest rate borne by the relevant Transfer Restricted Securities shall
again be increased pursuant to the foregoing provisions unless and until the
different Registration Default has been cured.
All Liquidated Damages accrued pursuant to this Section 5 shall be paid
to the Holders entitled thereto, in the manner provided for the payment of
interest in the Indenture, on each Interest Payment Date, as more fully set
forth in the Indenture and the Notes. All obligations of the Company and the
Guarantors set forth in the preceding paragraph that are outstanding with
respect to any Transfer Restricted Security at the time such security ceases to
be a Transfer Restricted Security shall survive until such time as all such
obligations with respect to such Note shall have been satisfied in full.
SECTION 6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company and the Guarantors shall comply with all of the
provisions of Section 6(c) below, shall use their commercially reasonable
efforts to effect such exchange to permit the sale of Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof, and shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the Company
there is a serious question as to whether the Exchange Offer is
permitted by applicable law, the Company and the Guarantors hereby
agree to use their commercially reasonable efforts to seek a no-action
letter or other favorable decision from the Commission allowing the
Company
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and the Guarantors to Consummate an Exchange Offer for such Initial
Notes. The Company and the Guarantors hereby agree to use their
commercially reasonable efforts to pursue the issuance of such a
decision to the Commission staff level, but shall not be required to
take commercially unreasonable action to effect a change of Commission
policy or otherwise obtain such no-action letter or other favorable
decision. The Company and the Guarantors hereby agree, however, to (A)
participate in telephonic conferences with the Commission, (B) deliver
to the Commission staff an analysis prepared by counsel to the Company
and the Guarantors setting forth the legal bases, if any, upon which
such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursue a resolution (which need not be
favorable) by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company,
prior to the Consummation thereof, a written representation to the
Company and the Guarantors (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement)
to the effect that (A) it is not an affiliate of the Company or the
Guarantors, (B) it is not engaged in, and does not intend to engage in,
and has no arrangement or understanding with any Person to participate
in, a distribution of the Exchange Notes to be issued in the Exchange
Offer and (C) it is acquiring the Exchange Notes in its ordinary course
of business. In addition, all such Holders of Transfer Restricted
Securities shall otherwise cooperate in the Company's preparations for
the Exchange Offer. Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the Commission
enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters (which may include any
no-action letter obtained pursuant to clause (i) above), and (2) must
comply with the registration and prospectus delivery requirements of
the Securities Act in connection with a secondary resale transaction
and that such a secondary resale transaction must be covered by an
effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K if the resales are of Exchange Notes obtained by such Holder in
exchange for Initial Notes acquired by such Holder directly from the
Company.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Guarantors shall comply with all the
provisions of Section 6(c) below and shall use their commercially reasonable
efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof, and pursuant thereto the Company and the
Guarantors will as soon as reasonably practicable prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Securities Act, which form shall be available for the
sale of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof.
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(c) General Provisions. In connection with any Registration Statement
and any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Transfer
Restricted Securities by Broker-Dealers), the Company and the Guarantors shall:
(i) use their commercially reasonable efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements (including, if required by the Securities Act or
any regulation thereunder, financial statements of the Guarantors) for
the period specified in Section 3 or 4 of this Agreement, as
applicable; upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or omission or (B) not to be effective
and usable for resale of Transfer Restricted Securities during the
period required by this Agreement, the Company and the Guarantors shall
file promptly an appropriate amendment to such Registration Statement,
in the case of clause (A), correcting any such misstatement or
omission, and, in the case of either clause (A) or (B), use their
commercially reasonable efforts to cause such amendment to be declared
effective as soon as practicable thereafter. Notwithstanding the
foregoing, if the Board of Directors of the Company determines in good
faith that it is in the best interests of the Company and the
Guarantors not to disclose the existence of or facts surrounding any
proposed or pending material corporate transaction or other material
development involving the Company or the Guarantors, the Company and
the Guarantors may allow any Shelf Registration Statement to fail to be
effective or the Prospectus contained therein to be unusable as a
result of such nondisclosure for up to 90 days in any year during the
two-year period of effectiveness required by Section 4 hereof;
(ii) use their commercially reasonable efforts to prepare and
file with the Commission such amendments and post-effective amendments
to the Registration Statement as may be necessary to keep the
Registration Statement effective for the applicable period set forth in
Section 3 or 4 hereof, as applicable, or such shorter period as will
terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities Act,
and to comply fully with the applicable provisions of Rules 424 and
430A under the Securities Act in a timely manner; and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable
period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when
the same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information relating thereto, (C)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Securities Act
or of
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the suspension by any state securities commission of the qualification
of the Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the
preceding purposes or (D) of the existence of any fact or the happening
of any event that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or
that requires the making of any additions to or changes in the
Registration Statement or the Prospectus in order to make the
statements therein not misleading. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities
under state securities or Blue Sky laws, the Company and the Guarantors
shall use their commercially reasonable efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(iv) furnish without charge to each of the Initial Purchasers,
each selling Holder named in any Registration Statement, and each of
the underwriter(s), if any, before filing with the Commission, copies
of any Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review of such Holders and underwriter(s) in connection
with such sale, if any, for a period of at least five Business Days,
and the Company and any Guarantors will not file any such Registration
Statement or Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such documents
incorporated by reference) to which an Initial Purchaser of Transfer
Restricted Securities covered by such Registration Statement or the
underwriter(s), if any, shall reasonably object in writing within five
Business Days after the receipt thereof (such objection to be deemed
timely made upon confirmation of telecopy transmission within such
period). The objection of an Initial Purchaser or underwriter, if any,
shall be deemed to be reasonable if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission;
(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the Initial Purchasers, each selling
Holder named in any Registration Statement, and to the underwriter(s),
if any, make the Company's representatives available and
representatives of the Guarantors available for discussion of such
document and other customary due diligence matters, and include such
information in such document prior to the filing thereof as such
selling Holders or underwriter(s), if any, reasonably may request;
(vi) make available at reasonable business hours in the
offices where such records are normally maintained for inspection by
the Initial Purchasers, any managing underwriter participating in any
disposition pursuant to such Registration Statement and any attorney or
accountant retained by such Initial Purchasers or any of the
underwriter(s), all relevant financial and other records, pertinent
corporate documents and documents relating to relevant properties of
the Company and the Guarantors subject to
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appropriate confidentiality agreements and cause the Company's and the
Guarantors' officers, directors and employees to supply all information
that is (a) reasonably requested by any such Holder, underwriter,
attorney or accountant in connection with such Registration Statement
subsequent to the filing thereof and prior to its effectiveness and (b)
customarily furnished in transactions of the type contemplated by such
Registration Statement;
(vii) if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included
therein, including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted Securities,
information with respect to the principal amount of Transfer Restricted
Securities being sold to such underwriter(s), the purchase price being
paid therefor and any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make all
required filings of such Prospectus supplement or post-effective
amendment as soon as reasonably practicable after the Company is
notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment;
(viii) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including financial statements and schedules, all
documents incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);
(ix) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Company
and the Guarantors hereby consent to the use (in accordance with law)
of the Prospectus and any amendment or supplement thereto by each of
the selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto;
(x) enter into, and cause the Guarantors to enter into, such
agreements (including an underwriting agreement containing customary
terms), and make, and cause the Guarantors to make, such
representations and warranties, and take all such other actions in
connection therewith in order to expedite or facilitate the disposition
of the Transfer Restricted Securities pursuant to any Registration
Statement contemplated by this Agreement, all to such extent as may be
reasonably requested by any Initial Purchaser or by any Holder of
Transfer Restricted Securities or underwriter in connection with any
sale or resale pursuant to any Registration Statement contemplated by
this Agreement; and the Company and the Guarantors shall:
(A) furnish (or in the case of paragraph (2) and (3),
use their commercially reasonable efforts to cause to be
furnished) to each Initial Purchaser, each selling Holder and
each underwriter, if any, in such substance and scope as are
customarily made by issuers to underwriters in primary
underwritten
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offerings, upon the date of the Consummation of the Exchange
Offer and, if applicable, the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, signed by (y) the President or any
Vice President and (z) a principal financial or
accounting officer of each of the Company and the
Guarantors, confirming, as of the date thereof, the
matters, to the extent applicable, set forth in
paragraphs (i), (ii) and (iii) of Section 5 (e) of
the Purchase Agreement;
(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 the matters set forth in
paragraph (c) of Section 5 of the Purchase Agreement
and in any event including a statement to the effect
that such counsel has participated in conferences
with officers and other representatives of the
Company and the Guarantors, representatives of the
independent public accountants for the Company and
the Guarantors, the Initial Purchasers'
representatives and the Initial Purchasers' counsel
in connection with the preparation of such
Registration Statement and the related Prospectus and
have considered the matters required to be stated
therein and the statements contained therein,
although such counsel has not independently verified
the accuracy, completeness or fairness of such
statements; and that such counsel advises that, on
the basis of the foregoing (relying as to materiality
to the extent such counsel deems appropriate upon the
statements of officers and other representatives of
the Company and the Guarantors and without
independent check or verification), no facts came to
such counsel's attention that caused such counsel to
believe that the applicable 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, 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 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
11
(3) a customary comfort letter, dated as of
the date of Consummation of the Exchange Offer or the
date of effectiveness of the Shelf Registration
Statement, as the case may be, from (i) the Company's
independent accountants and (ii) the independent
accountants of any other Person for which financial
statements are included in or incorporated by
reference into any Registration Statement
contemplated by this Agreement or the related
Prospectus, in the customary form and covering
matters of the type customarily covered in comfort
letters to underwriters in connection with primary
underwritten offerings, and affirming the matters set
forth in the comfort letters delivered pursuant to
Section 5(a) of the Purchase Agreement, without
exception;
(B) set forth in full or incorporate by reference in
the underwriting agreement, if any, the indemnification
provisions and procedures of Section 8 hereof with respect to
all parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as
may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company or the Guarantors
pursuant to this clause (x).
If at any time the representations and warranties of the
Company and the Guarantors contemplated in clause (A)(1) above cease to
be true and correct, the Company shall so advise the Initial Purchasers
and the underwriter(s), if any, and each selling Holder promptly and,
if requested by such Persons, shall confirm such advice in writing;
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with, and cause the Guarantors to cooperate with,
the selling Holders, the underwriter(s), if any, and their respective
counsel in connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue Sky laws of
such jurisdictions as the selling Holders or underwriter(s) may request
and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Transfer Restricted
Securities covered by the Shelf Registration Statement; provided,
however, that neither the Company nor any Guarantor shall be required
to register or qualify as a foreign corporation where it is not then so
qualified or to take any action that would subject it to the service of
process in suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any
jurisdiction where it is not then so subject;
(xii) issue, upon the request of any Holder of Initial Notes
covered by the Shelf Registration Statement, Exchange Notes, having an
aggregate principal amount equal to the aggregate principal amount of
Initial Notes surrendered to the Company by such Holder in exchange
therefor or being sold by such Holder; such Exchange Notes to be
registered in the name of such Holder or in the name of the
purchaser(s) of such Notes, as the case may be; in return, the Initial
Notes held by such Holder shall be surrendered to the Company for
cancellation;
12
(xiii) cooperate with, and cause the Guarantors to cooperate
with, the selling Holders and the underwriter(s), if any, to facilitate
the timely preparation and delivery of certificates representing
Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and enable such Transfer Restricted Securities to
be in such denominations and registered in such names as the Holders or
the underwriter(s), if any, may request at least two Business Days
prior to any sale of Transfer Restricted Securities made by such
underwriter(s);
(xiv) use their commercially reasonable efforts to cause the
Transfer Restricted Securities covered by the Registration Statement to
be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof
or the underwriter(s), if any, to consummate the disposition of such
Transfer Restricted Securities, subject to the proviso contained in
clause (viii) above;
(xv) subject to Section 6(c)(i), if any fact or event
contemplated by clause (c)(iii)(D) above shall exist or have occurred,
prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the
Prospectus will not contain an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein not misleading;
(xvi) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement and provide the Trustee under the Indenture with printed
certificates for the Transfer Restricted Securities which are in a form
eligible for deposit with the Depositary Trust Company;
(xvii) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation
by any underwriter (including any "qualified independent underwriter")
that is required to be retained in accordance with the rules and
regulations of the NASD, and use their reasonable best efforts to cause
such Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to enable the
Holders selling Transfer Restricted Securities to consummate the
disposition of such Transfer Restricted Securities;
(xviii) otherwise use their commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission, and
make generally available to its security holders, as soon as reasonably
practicable, a consolidated earnings statement meeting the requirements
of Rule 158 (which need not be audited) for the twelve-month period (A)
commencing at the end of any fiscal quarter in which Transfer
Restricted Securities are sold to underwriters in a firm or best
efforts Underwritten Offering or (B) if not sold to underwriters in
such an offering, beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of the Registration
Statement;
(xiv) cause the Indenture to be qualified under the Trust
Indenture Act not later than the effective date of the first
Registration Statement required by this Agreement, and, in connection
therewith, cooperate, and cause the Guarantors to cooperate with, with
the Trustee and the Holders of Notes 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 Trust
13
Indenture Act; and to execute, and cause the Guarantors to execute, and
use their commercially reasonable efforts to cause the Trustee to
execute, all documents that may be required to effect such changes and
all other forms and documents required to be filed with the Commission
to enable such Indenture to be so qualified in a timely manner;
(xx) cause all Transfer Restricted Securities covered by the
Registration Statement to be listed on each securities exchange on
which securities of the same class issued by the Company and the
Guarantors are then listed if requested by the Holders of a majority in
aggregate principal amount of Initial Notes or the managing
underwriter(s), if any; and
(xxi) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice referred to in Section 6(c)(iii)(C) or any
notice from the Company of the existence of any fact of the kind described in
Section 6(c)(iii)(D) hereof (in each case, a "Suspension Notice"), such Holder
will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the applicable Registration Statement until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xvi) hereof, or until it is advised in writing (the "Advice") by the
Company that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by reference in
the Prospectus. Each Holder receiving a Suspension Notice hereby agrees that it
will either (i) destroy any Prospectuses, other than permanent file copies, then
in such Holder's possession which have been replaced by the Company with more
recently dated Prospectuses or (ii) if so directed by the Company, deliver to
the Company (at the Company's expense) all copies, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Transfer Restricted Securities that was current at the time of receipt of such
Suspension Notice. In the event the Company shall give any such notice, the time
period regarding the effectiveness of such Registration Statement set forth in
Section 3 or 4 hereof, as applicable, shall be extended by the number of days in
the period from and including the date of the delivery of the Suspension Notice
to and including the date when each selling Holder covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(xvi) hereof or shall have received the
Advice; however, no such extension shall be taken into account in determining
whether Additional Interest is due pursuant to Section 5 hereof or the amount of
such Additional Interest, it being agreed that the Company's option to suspend
use of a Registration Statement pursuant to this paragraph shall be treated as a
Registration Default for purposes of Section 5.
SECTION 7. Registration Expenses.
(a) All expenses incident to the Company's or the Guarantors'
performance of or compliance with this Agreement will be borne by the Company or
the Guarantors, regardless of whether a Registration Statement becomes
effective, including without limitation: (i) all registration and filing fees
and expenses (including filings made by any Initial Purchaser or Holder with the
NASD (and, if applicable, the fees and expenses of any "qualified independent
underwriter" and its counsel that may be required by the rules and regulations
of the NASD)); (ii) all fees and expenses of compliance with federal securities
and state Blue Sky or securities
14
laws; (iii) all expenses of printing (including printing certificates for the
Exchange Notes to be issued in the Exchange Offer and printing of Prospectuses),
messenger and delivery services and telephone; (iv) all fees and disbursements
of counsel for the Company, the Guarantors and, subject to Section 7(b) below,
the Holders of Transfer Restricted Securities; (v) all application and filing
fees in connection with listing the Exchange Notes on a national securities
exchange or automated quotation system pursuant to the requirements thereof; and
(vi) all fees and disbursements of independent certified public accountants of
the Company, the Guarantors or other Person (including the expenses of any
special audit and comfort letters required by or incident to such performance).
The Company and the Guarantors will, in any event, bear their internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company and the Guarantors.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company and the Guarantors
will reimburse the Initial Purchasers and the Holders of Transfer Restricted
Securities being tendered in the Exchange Offer and/or resold pursuant to the
"Plan of Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Shearman & Sterling LLP or such other counsel as may be chosen by the Holders of
a majority in principal amount of the Transfer Restricted Securities for whose
benefit such Registration Statement is being prepared.
SECTION 8. Indemnification.
(a) The Company agrees and the Guarantors, jointly and severally, agree
to indemnify and hold harmless (i) each Holder and (ii) each Person, if any, who
controls (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) any Holder (any of the Persons referred to in this clause
(ii) being hereinafter referred to as a "Controlling Person") and (iii) the
respective officers, directors, partners, employees, representatives and agents
of any Holder or any Controlling Person (any person referred to in clause (i),
(ii) or (iii) may hereinafter be referred to as an "Indemnified Holder"), to the
fullest extent lawful, from and against any and all losses, claims, damages,
liabilities or expenses (including without limitation, reimbursement of all
costs reasonably incurred in investigating, preparing, pursuing, settling,
compromising, paying or defending any claim or action, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
including the reasonable fees and expenses of counsel to any Indemnified
Holder), caused by, related to, based upon, arising out of or in connection with
any untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement or Prospectus (or any amendment or supplement
thereto), or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses are caused by, based upon, arising out of or in connection with an
untrue statement or omission or alleged untrue statement or omission that is
made in reliance upon and in conformity with information relating to any of the
Holders furnished in writing to the Company by any of the Holders expressly for
use therein. This indemnity agreement shall be in addition to any liability
which the Company may otherwise have.
15
In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought against any of the
Indemnified Holders with respect to which indemnity may be sought against the
Company or the Guarantors, such Indemnified Holder (or the Indemnified Holder
controlled by such Controlling Person) shall promptly notify the Company and the
Guarantors in writing (provided, that the failure to give such notice shall not
relieve the Company or the Guarantors of their respective obligations pursuant
to this Agreement). In case any such action is brought against any Indemnified
Holder and such Indemnified Holder seeks or intends to seek indemnity from the
Company and the Guarantors, the Company and the Guarantors will be entitled to
participate in and, to the extent that they shall elect by written notice
delivered to the Indemnified Holder promptly after receiving the aforesaid
notice from such Indemnified Holder, to assume the defense thereof with counsel
reasonably satisfactory to such Indemnified Holder; provided, however, if the
defendants in any such action include both the Indemnified Holder and the
Company or any Guarantor and the Indemnified Holder shall have reasonably
concluded that a conflict may arise between the positions of the Company or any
Guarantor and the Indemnified Holder in conducting the defense of any such
action or that there may be legal defenses available to it which are different
from or additional to those available to the Company or any Guarantor, the
Indemnified Holder shall have the right to select separate counsel to assume
such legal defenses and to otherwise participate in the defense of such action
on behalf of itself. Upon receipt of notice from the Company or any Guarantor to
such Indemnified Holder of the Company or any Guarantor's election so to assume
the defense of such action and approval by the Indemnified Holder of counsel,
the Company or any Guarantor will not be liable to such Indemnified Holder under
this Section 8 for any legal or other expenses subsequently incurred by such
Indemnified Holder in connection with the defense thereof unless (i) the
Indemnified Holder shall have employed separate counsel in accordance with the
proviso to the second sentence of this paragraph (it being understood, however,
that the Company or any Guarantor shall not be liable for the expenses of more
than one separate counsel (together with local counsel, approved by the Company
or any Guarantor, representing the Indemnified Holder who is a party to such
action) or (ii) the Company or any Guarantor shall not have employed counsel
reasonably satisfactory to the Indemnified Holder to represent the Indemnified
Holder within a reasonable time after notice of commencement of the action, in
each of which cases the fees and expenses of counsel shall be at the expense of
the Company and the Guarantor.
The Company and the Guarantors shall be liable for any settlement of
any such action or proceeding effected with the Company's prior written consent,
which consent shall not be withheld unreasonably, and the Company and the
Guarantors agree to indemnify and hold harmless any Indemnified Holder from and
against any loss, claim, damage, liability or expense by reason of any
settlement of any action effected with the written consent of the Company. The
Company and the Guarantors shall not, without the prior written consent of each
Indemnified Holder, settle or compromise or consent to the entry of judgment in
or otherwise seek to terminate any pending or threatened action, claim,
litigation or proceeding in respect of which indemnification or contribution may
be sought hereunder (whether or not any Indemnified Holder is a party thereto),
unless such settlement, compromise, consent or termination (i) includes an
unconditional release of each Indemnified Holder from all liability arising out
of such action, claim, litigation or proceeding and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of the Indemnified Holder.
16
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Company and the Guarantors and
their respective directors, officers, and each person controlling (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
the Company, the Guarantors and the respective officers, directors, partners,
employees, representatives and agents of each such person, to the same extent as
the indemnity from the Company and the Guarantors to each of the Indemnified
Holders set forth in Section 8(a), but only with respect to claims and actions
based on information relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement. In case any action or
proceeding shall be brought against the Company, the Guarantors or their
directors or officers or any such Controlling Person in respect of which
indemnity may be sought against a Holder of Transfer Restricted Securities, such
Holder shall have the rights and duties given the Company and/or the Guarantors
and the Company, the Guarantors or their directors or officers or such
Controlling Person shall have the rights and duties given to each Holder by
Section 8(a).
(c) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under Section 8(a) or Section 8(b) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities or expenses referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Holders, on the other hand,
from the Initial Placement (which in the case of the Company and the Guarantors
shall be deemed to be equal to the total gross proceeds from the Initial
Placement as set forth on the cover page of the Offering Memorandum, less any
discount received by the Initial Purchasers in the Initial Placement), the
amount of Liquidated Damages which does not become payable as a result of the
filing of the Registration Statement resulting in such losses, claims, damages,
liabilities or expenses, and such Registration Statement, or if such allocation
is not permitted by applicable law, the relative fault of the Company and the
Guarantors on the one hand, and of the Indemnified Holder, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of the Company on the one hand and
of the Indemnified Holder on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Indemnified Holder and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in the second paragraph of Section 8(a), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.
The Company, the Guarantors and each Holder of Transfer Restricted
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 8(c) were determined by pro rata allocation (even if
the Holders were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
or expenses referred
17
to in the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the other provisions of this Section 8, no
Holder (and its related Indemnified Holders) shall be liable, in the aggregate,
for any amount in excess of the discount granted or the commission paid by the
Company as set forth in the Purchase Agreement with respect to the Initial Notes
held by such Holder, or in the case of a Holder of Exchange Notes, the Initial
Notes exchanged for such Exchange Notes. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to contribute pursuant to
this Section 8(c) are several in proportion to the respective principal amount
of Initial Notes held by each of the Holders hereunder and not joint.
SECTION 9. Rule 144A. The Company and the Guarantors each hereby agrees
with each Holder, for so long as any Transfer Restricted Securities remain
outstanding, to make available to any Holder or beneficial owner of Transfer
Restricted Securities in connection with any sale thereof and any prospective
purchaser of such Transfer Restricted Securities from such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Securities Act in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144A.
SECTION 10. Participation In Underwritten Registrations. No Holder may
participate in any Underwritten Registration hereunder unless such Holder (a)
agrees to sell such Holder's Transfer Restricted Securities on the basis
provided in a customary underwriting agreement entered into in connection
herewith and (b) completes and executes all reasonable questionnaires, powers of
attorney, indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such underwriting arrangements.
SECTION 11. Selection Of Underwriters. The Holders of Transfer
Restricted Securities covered by the Shelf Registration Statement who desire to
do so may sell such Transfer Restricted Securities in an Underwritten Offering.
In any such Underwritten Offering, the investment banker or investment bankers
and manager or managers that will administer the offering will be selected by
the Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities included in such offering; provided, that such investment
bankers and managers must be reasonably satisfactory to the Company.
SECTION 12. Miscellaneous.
(a) Remedies. The Company and the Guarantors each hereby agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agree to
waive the defense in any action for specific performance that a remedy at law
would be adequate.
(b) No Inconsistent Agreements. The Company will not, and will cause
the Guarantors not to, on or after the date of this Agreement enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's securities under any agreement in effect on the date hereof.
18
(c) Adjustments Affecting the Notes. The Company and the Guarantors
will not take any action, or permit any change to occur, with respect to the
Notes that would materially and adversely affect the ability of the Holders to
Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the Exchange
Offer and that does not affect directly or indirectly the rights of other
Holders whose securities are not being tendered pursuant to such Exchange Offer
may be given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered or registered; provided that, with
respect to any matter that directly or indirectly affects the rights of any
Initial Purchaser hereunder, the Company shall obtain the written consent of
each such Initial Purchaser with respect to which such amendment, qualification,
supplement, waiver, consent or departure is to be effective.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under
the Indenture; and
(ii) if to the Company:
Rayovac Corporation
000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxx Xxxxx
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if
19
telecopied; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; provided, however, that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
RAYOVAC CORPORATION
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
ROV HOLDING, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
ROVCAL, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
VESTAR XXXXXX CORP.
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
21
VESTAR RAZOR CORP.
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
REMINGTON PRODUCTS COMPANY, L.L.C.
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
REMINGTON CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
REMINGTON RAND CORPORATION
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
REMINGTON CORPORATION, L.L.C.
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
22
The foregoing Registration Rights Agreement is hereby confirmed and
accepted as of the date first above written:
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL CAPITAL MARKETS INC.
ABN AMRO INCORPORATED
By: Banc of America Securities LLC
By: /s/ Xxxxxxxx X. Xxxxx
------------------------
Managing Director
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SCHEDULE A
GUARANTOR JURISDICTION OF INCORPORATION
--------- -----------------------------
ROV Holding, Inc. Delaware
Rovcal, Inc. California
Vestar Xxxxxx Corp. Delaware
Vestar Razor Corp. Delaware
Remington Products Company, L.L.C. Delaware
Remington Capital Corporation Delaware
Remington Rand Corporation Delaware
Remington Corporation, L.L.C. Delaware
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