EXHIBIT 10.38
PHIBRO ANIMAL HEALTH CORPORATION
AND
PHILIPP BROTHERS NETHERLANDS III B.V.
22,491 UNITS CONSISTING OF
$18,207,000 13% SENIOR SECURED NOTES DUE 2007 OF PHIBRO ANIMAL HEALTH
CORPORATION
AND
$4,284,000 13% SENIOR SECURED NOTES DUE 2007 OF PHILIPP BROTHERS NETHERLANDS
III B.V.
REGISTRATION RIGHTS AGREEMENT
December 21, 2004
XXXXXXXXX & COMPANY, INC.
00000 Xxxxx Xxxxxx Xxxx., 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
Phibro Animal Health Corporation, a New York corporation (the "Company")
and Philipp Brothers Netherlands III B.V., a Dutch company with limited
liability and an indirect wholly owned subsidiary of the Company ("Philipp
Brothers Netherlands" and, together with the Company, the "Issuers") are issuing
and selling to Xxxxxxxxx & Company, Inc. (the "Initial Purchaser"), upon the
terms set forth in the Purchase Agreement dated December 9, 2004, by and among
the Issuers, the Initial Purchaser and the subsidiary guarantors named therein
(the "Purchase Agreement"), 22,491 Units (each, a "Unit" and collectively, the
"Units"), each Unit consisting of $809.5238095 principal amount of 13% Senior
Secured Notes due 2007 issued by the Company (the "U.S. Notes") and $190.4761905
principal amount of 13% Senior Secured Notes due 2007 issued by Xxxxxxx Xxxxxxxx
Netherlands (the "Dutch Notes" and, together with U.S. Notes, the "Notes"). As
an inducement to the Initial Purchaser to enter into the Purchase Agreement, the
Issuers and the Guarantors (as defined below) agree with the Initial Purchaser,
for the benefit of the Holders (as defined below) of the Units (including,
without limitation, the Initial Purchaser), as follows:
1. DEFINITIONS
Capitalized terms that are used herein without definition and are defined
in the Purchase Agreement shall have the respective meanings ascribed to them in
the Purchase Agreement. As used in this Agreement, the following terms shall
have the following meanings:
ADDITIONAL INTEREST: See Section 4(a).
ADVICE: See Section 6(v).
AGREEMENT: This Registration Rights Agreement, dated as of the Closing
Date, among the Issuers, the Guarantors and the Initial Purchaser.
APPLICABLE PERIOD: See Section 2(e).
BUSINESS DAY: A day that is not a Saturday, a Sunday or a day on which
banking institutions in the City of New York are authorized or required by law
or executive order to be closed.
CLOSING DATE: December 21, 2004.
COLLATERAL AGREEMENTS: Shall have the meaning set forth in the Indenture.
COMPANY: See the introductory paragraph to this Agreement.
DAY: Unless otherwise expressly provided, a calendar day.
DUTCH NOTES: See the introductory paragraph to this Agreement.
EFFECTIVENESS DATE: The 180th day after the Closing Date.
EFFECTIVENESS PERIOD: See Section 3(a).
EVENT DATE: See Section 4(b).
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
EXCHANGE DUTCH NOTES: The Senior Secured Notes due 2007 of Philipp
Brothers Netherlands, identical in all material respects to the Dutch Notes,
including the guarantees endorsed thereon, except for restrictive legends and
additional interest provisions.
EXCHANGE NOTES: The Exchange U.S. Notes and the Exchange Dutch Notes.
EXCHANGE OFFER: See Section 2(a).
EXCHANGE REGISTRATION STATEMENT: See Section 2(a).
EXCHANGE UNITS: Units, each consisting of $809.5238095 principal amount of
Exchange U.S. Notes and $190.4761905 principal amount of Exchange Dutch Notes.
EXCHANGE U.S. NOTES: The Senior Secured Notes due 2007 of the Company,
identical in all material respects to the U.S. Notes, including the guarantees
endorsed thereon, except for restrictive legends and additional interest
provisions.
FILING DATE: The 120th day after the Closing Date.
GUARANTORS: Shall mean the Company and the Subsidiary Guarantors with
respect to the U.S. Notes and the Subsidiary Guarantors with respect to the
Dutch Notes.
HOLDER: Any registered holder of Registrable Units.
INDEMNIFIED PARTY: See Section 8(c).
INDEMNIFYING PARTY: See Section 8(c).
INDENTURE: The Indenture, dated as of October 21, 2003, among the Issuers,
the Subsidiary Guarantors and HSBC Bank USA, National Association as trustee,
pursuant to which the Units are being issued, as amended or supplemented from
time to time in accordance with the terms thereof.
INITIAL PURCHASER: See the introductory paragraph to this Agreement.
INITIAL SHELF REGISTRATION: See Section 3(a).
INSPECTORS: See Section 6(o).
ISSUERS: See the introductory paragraph to this Agreement.
LOSSES: See Section 8(a).
NASD: National Association of Securities Dealers, Inc.
NOTES: See the introductory paragraph to this Agreement.
PARTICIPATING BROKER-DEALER: See Section 2(e).
PERSON: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm, government or agency or political subdivision
thereof, or other legal entity.
PHILIPP BROTHERS NETHERLANDS: See the introductory paragraph to this
Agreement.
PRIVATE EXCHANGE: See Section 2(f).
PRIVATE EXCHANGE NOTES: See Section 2(f).
PRIVATE EXCHANGE UNITS: See Section 2(f).
PROSPECTUS: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Units covered by such
Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
PURCHASE AGREEMENT: See the introductory paragraph to this Agreement.
RECORDS: See Section 6(o).
REGISTRABLE UNITS: (i) Units, (ii) Private Exchange Units and (iii)
Exchange Units received in the Exchange Offer, in each case, that may not be
sold free of the registration and prospectus delivery requirements of the
Securities Act.
REGISTRATION STATEMENT: Any registration statement of the Issuers and the
Guarantors filed with the SEC under the Securities Act (including, but not
limited to, the Exchange Registration Statement, the Shelf Registration and any
subsequent Shelf Registration) that covers any of the Registrable Units pursuant
to the provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
RULE 144: Rule 144 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer or such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
RULE 144A: Rule 144A promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
RULE 415: Rule 415 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
RULE 430A: Rule 430A promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
SECURITIES: The Units, the Exchange Units and the Private Exchange Units
(including the underlying Notes, the Exchange Notes and the Private Exchange
Notes, respectively).
SECURITIES ACT: The Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
SEPARATION EVENT: Shall have the meaning set forth in the Indenture.
SHELF NOTICE: See Section 2(j).
SHELF REGISTRATION: See Section 3(b).
SUBSEQUENT SHELF REGISTRATION: See Section 3(b).
SUBSIDIARY GUARANTOR: Each subsidiary of the Company that guarantees the
obligations of the Issuers under the Notes and the Indenture.
TIA: The Trust Indenture Act of 1939, as amended.
TRUSTEE: The trustee under the Indenture and, if existent, the trustee
under any indenture governing the Exchange Units and Private Exchange Units (if
any).
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in
which securities of the Issuers are sold to an underwriter for reoffering to the
public.
UNITS: See the introductory paragraph to this Agreement.
U.S. NOTES: See the introductory paragraph to this Agreement.
2. EXCHANGE OFFER
(a) Unless the Exchange Offer would not be permitted by applicable laws
or a policy of the SEC, the Issuers shall (and shall cause each
Guarantor with respect to its guarantee to) (i) prepare and file
with the SEC by the Filing Date, a registration statement (the
"Exchange Registration Statement") on an appropriate form under the
Securities Act with respect to an offer (the "Exchange Offer") to
the Holders of Units to issue and deliver to such Holders, in
exchange for the Units, a like number of Exchange Units, (ii) use
their reasonable best efforts to cause the Exchange Registration
Statement to become effective by the Effectiveness Date, (iii) use
their reasonable best efforts to keep the Exchange Registration
Statement effective for not less than 20 Business Days after the
Exchange Registration Statement is declared effective, and (iv) use
their reasonable best efforts to issue on or prior to 30 days after
the date on which the Exchange Registration Statement is declared
effective, Exchange Units in exchange for all Units tendered prior
thereto in the Exchange Offer. The Exchange Offer shall not be
subject to any conditions, other than that the Exchange Offer does
not violate applicable law or any applicable interpretation of the
staff of the SEC.
(b) The Exchange Units and the underlying Exchange Notes shall be issued
under, and entitled to the benefits of, (i) the Indenture or a trust
indenture that is identical to the Indenture (other than such
changes as are necessary to comply with any requirements of the SEC
to effect or maintain the qualifications thereof under the TIA) and
(ii) the Collateral Agreements.
(c) Interest on the Exchange Notes and Private Exchange Notes will
accrue from the last interest payment date on which interest was
paid on the Notes surrendered in exchange therefor or, if no
interest has been paid on the Notes, from the date of original issue
of the Notes. Each Exchange Note and Private Exchange Note shall
bear interest at the rate set forth thereon; provided, that interest
with respect to the period prior to the issuance thereof shall
accrue at the rate or rates borne by the Notes from time to time
during such period.
(d) The Issuers may require each Holder as a condition to participation
in the Exchange Offer to represent (i) that any Exchange Units
received by it will be acquired in the ordinary course of its
business, (ii) that at the time of the commencement and consummation
of the Exchange Offer such Holder has not entered into any
arrangement or understanding with any Person to participate in
the distribution (within the meaning of the Securities Act) of the
Exchange Units in violation of the provisions of the Securities Act,
(iii) that if such Holder is an "affiliate" of the either of the
Issuers or a Guarantor within the meaning of Rule 405 of the
Securities Act, it will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable
to it, (iv) if such Holder is not a broker-dealer, that it is not
engaged in, and does not intend to engage in, the distribution of
the Units and (v) if such Holder is a Participating Broker-Dealer,
that it will deliver a Prospectus in connection with any resale of
the Exchange Units.
(e) The Issuers shall include within the Prospectus contained in the
Exchange Registration Statement a section entitled "Plan of
Distribution" which shall contain a summary statement of the
positions taken or policies made by the staff of the SEC with
respect to the potential "underwriter" status of any broker-dealer
that is the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Units received by such broker-dealer in
the Exchange Offer for its own account in exchange for Units that
were acquired by it as a result of market-making or other trading
activity (a "Participating Broker-Dealer"), whether such positions
or policies have been publicly disseminated by the staff of the SEC
or such positions or policies, in the judgment of the Initial
Purchaser, represent the prevailing views of the staff of the SEC.
Such "Plan of Distribution" section shall also allow, to the extent
permitted by applicable policies and regulations of the SEC, the use
of the Prospectus by all Persons subject to the prospectus delivery
requirements of the Securities Act, including, to the extent so
permitted, all Participating Broker-Dealers, and include a statement
describing the manner in which Participating Broker-Dealers may
resell the Exchange Units. The Issuers shall use their reasonable
best efforts to keep the Exchange Registration Statement effective
and to amend and supplement the Prospectus contained therein, in
order to permit such Prospectus to be lawfully delivered by all
Persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such Persons must comply
with such requirements in order to resell the Exchange Units (the
"Applicable Period").
(f) If, upon consummation of the Exchange Offer, the Initial Purchaser
holds any Units acquired by it and having the status of an unsold
allotment in the initial distribution, the Issuers (upon the written
request from the Initial Purchaser) shall, simultaneously with the
delivery of the Exchange Units in the Exchange Offer, issue and
deliver to the Initial Purchaser, in exchange (the "Private
Exchange") for the Units held by the Initial Purchaser, a like
principal amount of Exchange Units that are identical to the Units,
except for the existence of restrictions on transfer thereof under
the Securities Act and securities laws of the several states of the
United States (the "Private Exchange Units" and the Exchange Notes
underlying the Units the "Private Exchange Notes") (and which are
issued pursuant to the same indenture as the Exchange Units and
Exchange Notes). The Private Exchange Units shall bear the same
CUSIP number as the Exchange Units.
(g) In connection with the Exchange Offer, the Issuers shall (and shall
cause each Subsidiary Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Registration Statement, together with an
appropriate letter of transmittal that is an exhibit to the
Exchange Offer Registration Statement, and any related
documents;
(ii) keep the Exchange Offer open for not less than 20 Business
Days after the date on which the Exchange Registration
Statement is declared effective;
(iii) utilize the services of a depository for the Exchange Offer
with an address in the Borough of Manhattan, the City of New
York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Units at any
time prior to the close of business, New York time, on the
last Business Day on which the Exchange Offer shall remain
open; and
(v) otherwise comply in all material respects with all applicable
laws.
(h) As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Issuers shall (and shall
cause each Subsidiary Guarantor to):
(i) accept for exchange all Registrable Units validly tendered
pursuant to the Exchange Offer or the Private Exchange, as the
case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Units
so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each
Holder tendering such Registrable Units, Exchange Units or
Private Exchange Units (and the underlying Exchange Notes and
Private Exchange Notes), as the case may be, equal in
principal amount to the Units of such Holder so accepted for
exchange.
(i) The Exchange Units and the Private Exchange Units (and the
underlying Exchange Notes and Private Exchange Notes) may be issued
under (i) the Indenture or (ii) an indenture identical to the
Indenture (other than such changes as are necessary to comply with
any requirements of the SEC to effect or maintain the qualification
thereof under the TIA), which in either event will provide that the
Exchange Units will not be subject to the transfer restrictions set
forth in the Indenture, and that the Exchange Units, the Private
Exchange Units and the Units, if any, will be deemed one class of
security (subject to the provisions of the Indenture) and entitled
to participate in all the respective security granted by the
Issuers pursuant to the Collateral Agreements and in any Subsidiary
Guarantee (as such terms are defined in the Indenture) on an equal
and ratable basis.
(j) If: (i) applicable interpretations of the staff of the SEC would not
permit the consummation of the Exchange Offer; (ii) subsequent to
the consummation of the Private Exchange, any Holder of Private
Exchange Units so requests; (iii) the Exchange Offer is not
consummated by the 210th day following the Closing Date; or (iv) (A)
any Holder is prohibited by law or Commission policy form
participating in the Exchange Offer, (B) if the Initial Purchaser so
requests with respect to Units not eligible to be exchanged for
Exchange Units in the Exchange Offer, (C) any Holder participating
in the Exchange Offer receives Exchange Units that may not be sold
without restriction under state and federal securities laws (other
than due solely to the status of such Holder as an affiliate of the
Issuers within the meaning of the Securities Act) or (D) any
broker-dealer holds Units acquired directly from the Issuers or any
of their affiliates and, in each such case contemplated by this
clause (v), and such Holder notifies the Issuers within six months
of consummation of the Exchange Offer, then the Issuers shall
promptly (and in any event within five Business Days) deliver to the
Holders (or in the case of an occurrence of any event described in
clause (v) of this Section 2(j), to any such Holder) and the Trustee
written notice thereof (the "Shelf Notice") and shall promptly (but
in no event later than the Shelf Filing Date) file an Initial Shelf
Registration pursuant to Section 3.
3. SHELF REGISTRATION
If a Shelf Notice is delivered pursuant to Section 2(j), then this Section
3 shall apply to all Registrable Units. Otherwise, upon consummation of the
Exchange Offer in accordance with Section 2, the provisions of this Section 3
shall apply solely with respect to (i) Units held by any Holder thereof not
permitted to participate in the Exchange Offer, (ii) Units held by any
broker-dealer that acquired such Units directly from the Issuers or any of their
affiliates and (iii) Exchange Units that are not freely tradeable as
contemplated by Section 2(j)(v) hereof, provided in each case that the relevant
Holder has duly notified the Issuers within six months of the Exchange Offer as
required by Section 2(j)(v).
(a) Initial Shelf Registration. The Issuers shall (and shall cause each
Subsidiary Guarantor to), promptly, file with the SEC a Registration
Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all of the Registrable Units (the "Initial
Shelf Registration"). If the Issuers (and any Subsidiary Guarantor)
have not yet filed an Exchange Registration Statement, the Issuers
shall (and shall cause each Subsidiary Guarantor to) file with the
SEC the Initial Shelf Registration on or prior to the Filing Date
and shall use their reasonable best efforts to cause such Initial
Shelf Registration to be declared effective under the Securities Act
on or prior to the Effectiveness Date. Otherwise, the Issuers shall
(and shall cause each Subsidiary Guarantor to) use their reasonable
best efforts to file with the SEC the Initial Shelf Registration
within 30 days of the delivery of the Shelf Notice and shall use
their reasonable best efforts to cause such Shelf Registration to be
declared effective under the
Securities Act as promptly as practicable thereafter (but in no
event more than 90 days after delivery of the Shelf Notice). The
Initial Shelf Registration shall be on Form S-1 or another
appropriate form permitting registration of such Registrable Units
for resale by Holders in the manner or manners reasonably designated
by them (including, without limitation, one or more underwritten
offerings). The Issuers and Subsidiary Guarantors shall not permit
any securities other than the Registrable Units to be included in
any Shelf Registration. The Issuers shall (and shall cause each
Subsidiary Guarantor to) use their reasonable best efforts to keep
the Initial Shelf Registration continuously effective under the
Securities Act until the date which is 24 months from the Closing
Date (subject to extension pursuant to the last paragraph of Section
6(v) (the "Effectiveness Period"), or such shorter period ending
when (i) all Registrable Units covered by the Initial Shelf
Registration have been sold in the manner set forth and as
contemplated in the Initial Shelf Registration (ii) a Subsequent
Shelf Registration covering all of the Registrable Units covered by
and not sold under the Initial Shelf Registration or an earlier
Subsequent Shelf Registration has been declared effective under the
Securities Act or (iii) there cease to be any outstanding
Registrable Units.
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration or
any Subsequent Shelf Registration (as defined below) ceases to be
effective for any reason at any time during the Effectiveness Period
(other than because of the sale of all of the securities registered
thereunder), the Issuers shall (and shall cause each Subsidiary
Guarantor to) use their reasonable best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in
any event shall within 30 days of such cessation of effectiveness
amend such Shelf Registration in a manner designed to obtain the
withdrawal of the order suspending the effectiveness thereof, or
file (and cause each Subsidiary Guarantor to file) an additional
"shelf" Registration Statement pursuant to Rule 415 covering all of
the Registrable Units (a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, the Issuers shall (and shall
cause each Subsidiary Guarantor to) use their reasonable best
efforts to cause the Subsequent Shelf Registration to be declared
effective as soon as practicable after such filing and to keep such
Subsequent Shelf Registration continuously effective for a period
equal to the number of days in the Effectiveness Period less the
aggregate number of days during which the Initial Shelf Registration
or any Subsequent Shelf Registration was previously effective. As
used herein the term "Shelf Registration" means the Initial Shelf
Registration and any Subsequent Shelf Registrations
(c) Supplements and Amendments. The Issuers shall promptly supplement
and amend any Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used
for such Shelf Registration, if required by the Securities Act, or
if requested in writing by the Holders of a majority in aggregate
principal amount of the Registrable Units covered by such Shelf
Registration or if reasonably requested by any underwriter of such
Registrable Units.
4. ADDITIONAL INTEREST
(a) The Issuers acknowledge and agree that the Holders of Registrable
Units will suffer damages if the Issuers fail to fulfill their
material obligations under Section 2 or Section 3 hereof and that it
would not be feasible to ascertain the extent of such damages with
precision. Accordingly, the Issuers agree to pay additional cash
interest on the Notes ("Additional Interest") under the
circumstances and to the extent set forth below (each of which shall
be given independent effect):
(i) if neither the Exchange Registration Statement nor the Initial
Shelf Registration has been filed on or prior to the Filing
Date, Additional Interest shall accrue on the Notes over and
above any stated interest at a rate of 0.25% per annum of the
principal amount of such Notes for the first 90 days
immediately following the Filing Date, such Additional
Interest rate increasing by an additional 0.25% per annum at
the beginning of each subsequent 90-day period;
(ii) if neither the Exchange Registration Statement nor the Initial
Shelf Registration is declared effective on or prior to the
Effectiveness Date, Additional Interest shall accrue on the
Notes over and above any stated interest at a rate of 0.25%
per annum of the principal amount of such Notes for the first
90 days immediately following the Effectiveness Date, such
Additional Interest rate increasing by an additional 0.25% per
annum at the beginning of each subsequent 90-day period;
(iii) if (A) the Issuers have not exchanged Exchange Units for all
Units validly tendered in accordance with the terms of the
Exchange Offer on or prior to 30 days after the Effectiveness
Date, (B) the Exchange Registration Statement ceases to be
effective at any time prior to the expiration of 20 Business
Days thereafter, (C) if applicable, a Shelf Registration has
been declared effective and such Shelf Registration ceases to
be effective at any time prior to the second anniversary of
its effective date (other than such time as all Units have
been disposed of thereunder) and is not declared effective
again within 30 days, or (D) pending the announcement of a
material corporate transaction, the Issuers issue a written
notice pursuant to Section 6(e)(v) or (vi) that a Shelf
Registration Statement or Exchange Registration Statement is
unusable and the aggregate number of days in any 365-day
period for which all such notices issued or required to be
issued, have been, or were required to be, in effect exceeds
120 days in the aggregate or 30 days consecutively, in the
case of a Shelf Registration statement, or 15 days in the
aggregate in the case of an Exchange Registration Statement,
then Additional Interest shall accrue on the Notes, over and
above any stated interest, at a rate of 0.25% per annum of the
principal amount of such Notes commencing on (w) the 31st day
after the Effectiveness Date, in the case of (A) above, or (x)
the date the Exchange Registration Statement ceases to be
effective without being declared effective again within 30
days, in the case of clause (B) above, or (y) the
day such Shelf Registration ceases to be effective in the case
of (C) above, or (z) the day the Exchange Registration
Statement or Shelf Registration ceases to be usable in case of
clause (D) above, such Additional Interest rate increasing by
an additional 0.25% per annum at the beginning of each such
subsequent 90-day period;
provided, however, that the maximum Additional Interest rate on the
Notes may not exceed at any one time in the aggregate 1.00% per
annum; and provided further, that (1) upon the filing of the
Exchange Registration Statement or Initial Shelf Registration (in
the case of (i) above), (2) upon the effectiveness of the Exchange
Registration Statement or Initial Shelf Registration (in the case of
(ii) above), or (3) upon the exchange of Exchange Units for all
Units tendered (in the case of (iii)(A) above), or upon the
effectiveness of the Exchange Registration Statement that had ceased
to remain effective (in the case of clause (iii)(B) above), or upon
the effectiveness of a Shelf Registration which had ceased to remain
effective (in the case of (iii)(C) above), Additional Interest on
the Notes as a result of such clause (or the relevant subclause
thereof) or upon the effectiveness of such Registration Statement or
Exchange Registration Statement (in the case of clause (iii)(D)
above), as the case may be, shall cease to accrue.
(b) The Issuers shall notify the Trustee within 5 Business Days after
each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Any
amounts of Additional Interest due pursuant to clause (a)(i),
(a)(ii) or (a)(iii) of this Section 4 will be payable in cash, on
the dates and in the manner provided in the Indenture and whether or
not any cash interest would then be payable on such date, commencing
with the first such semi-annual date occurring after any such
Additional Interest commences to accrue. The amount of Additional
Interest will be determined by multiplying the applicable Additional
Interest rate by the principal amount of the Notes, multiplied by a
fraction, the numerator of which is the number of days such
Additional Interest rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve
30-day months and, in the case of a partial month, the actual number
of days elapsed), and the denominator of which is 360.
5. HOLD-BACK AGREEMENTS
The Issuers agree that they will not effect any public or private sale or
distribution (including a sale pursuant to Regulation D under the Securities
Act) of any securities the same as or similar to those covered by a Registration
Statement filed pursuant to Section 2 or 3 hereof (other than Additional Units
(as defined in the Indenture) issued under the Indenture), or any securities
convertible into or exchangeable or exercisable for such securities, during the
10 days prior to, and during the 90-day period beginning on, the effective date
of any Registration Statement filed pursuant to Sections 2 and 3 hereof unless
the Holders of a majority in the aggregate principal amount of the Registrable
Units to be included in such Registration Statement consent, if the managing
underwriter thereof so requests in writing.
6. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement pursuant to
Sections 2 or 3 hereof, the Issuers shall (and shall cause each Subsidiary
Guarantor to) effect such registrations to permit the sale of such securities
covered thereby in accordance with the intended method or methods of disposition
thereof, and pursuant thereto and in connection with any Registration Statement
filed by the Issuers hereunder, the Issuers shall (and shall cause each
Subsidiary Guarantor to):
(a) Prepare and file with the SEC on or prior to the Filing Date, the
Exchange Registration Statement or if the Exchange Registration
Statement is not filed because of the circumstances contemplated by
Section 2(j), a Shelf Registration as prescribed by Section 3, and
use their reasonable best efforts to cause each such Registration
Statement to become effective and remain effective as provided
herein; provided that, if (1) a Shelf Registration is filed pursuant
to Section 3 or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 is required to be
delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Units during the Applicable
Period relating thereto, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto the Issuers
shall (and shall cause each Subsidiary Guarantor to), if requested,
furnish to and afford the Holders of the Registrable Units to be
registered pursuant to such Shelf Registration Statement, each
Participating Broker-Dealer, the managing underwriters, if any, and
each of their respective counsel, a reasonable opportunity to review
copies of all such documents (including copies of any documents to
be incorporated by reference therein and all exhibits thereto)
proposed to be filed (in each case at least 5 Business Days prior to
such filing). The Issuers and each Subsidiary Guarantor shall not
file any such Registration Statement or Prospectus or any amendments
or supplements thereto in respect of which the Holders must provide
information for the inclusion therein without the Holders being
afforded an opportunity to review such documentation if the holders
of a majority in aggregate principal amount of the Registrable Units
covered by such Registration Statement, or any such Participating
Broker-Dealer, as the case may be, the managing underwriters, if
any, or any of their respective counsel shall reasonably object in
writing on a timely basis. A Holder shall be deemed to have
reasonably objected to such filing 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 Securities Act.
(b) Provide an indenture trustee for the Registrable Units, the Exchange
Units or the Private Exchange Units, as the case may be, and cause
the Indenture (or other indenture relating to the Registrable Units)
to be qualified under the TIA not later than the effective date of
the first Registration Statement; and in connection therewith, to
effect such changes to such 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 reasonable best efforts to cause such trustee to
execute, all documents as may be required to effect such changes,
and all other forms and documents required to be filed with the SEC
to enable such indenture to be so qualified in a timely manner.
(c) Prepare and file with the SEC such pre-effective amendments and
post-effective amendments to each Shelf Registration or Exchange
Registration Statement, as the case may be, as may be necessary to
keep such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the case may be;
cause the related Prospectus to be supplemented by any Prospectus
supplement required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with the provisions
of the Securities Act and the Exchange Act applicable to them with
respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so
supplemented and with respect to the subsequent resale of any
securities being sold by a Participating Broker-Dealer covered by
any such Prospectus. The Issuers and each Subsidiary Guarantor shall
not, during the Applicable Period, voluntarily and knowingly take
any action that would result in selling Holders of the Registrable
Units covered by a Registration Statement or Participating
Broker-Dealers seeking to sell Exchange Units not being able to sell
such Registrable Units or such Exchange Units during that period,
unless such action, in the reasonable judgment of the Issuers, is
required by applicable law, rule or regulation or permitted by this
Agreement.
(d) Furnish to such selling Holders and Participating Broker-Dealers who
so request in writing (i) upon the Issuers' receipt, a copy of the
order of the SEC declaring such Registration Statement and any
post-effective amendment thereto effective, (ii) such reasonable
number of copies of the Prospectus included in such Registration
Statement (including each preliminary Prospectus) and each amendment
and supplement thereto, and such reasonable number of copies of the
final Prospectus as filed by the Issuers and each Subsidiary
Guarantor pursuant to Rule 424(b) under the Securities Act, in
conformity with the requirements of the Securities Act and each
amendment and supplement thereto, and (iii) such other documents
(including any amendments required to be filed pursuant to clause
(c) of this Section), as any such Person may reasonably request in
writing. The Issuers and the Subsidiary Guarantors hereby consent to
the use of the Prospectus by each of the selling Holders of
Registrable Units or each such Participating Broker-Dealer, as the
case may be, and the underwriters or agents, if any, and dealers, if
any, in connection with the offering and sale of the Registrable
Units covered by, or the sale by Participating Broker-Dealers of the
Exchange Units pursuant to, such Prospectus and any amendment or
supplement thereto.
(e) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Units during the Applicable Period relating
thereto, the Issuers shall notify in writing the selling Holders of
Registrable Units, or each such Participating Broker-Dealer, as the
case may be, the managing underwriters, if any, and each of their
respective counsel promptly (but in any event within 2 Business
Days) (i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of the issuance by the SEC of any
stop order suspending the effectiveness of a Registration Statement
or of any order preventing or suspending the use of any Prospectus
or the initiation of any proceedings for that purpose, (iii) if at
any time when a Prospectus is required by the Securities Act to be
delivered in connection with sales of the Registrable Units the
representations and warranties of the Issuers and any Subsidiary
Guarantor contained in any agreement (including any underwriting
agreement) contemplated by Section 6(n) hereof cease to be true and
correct in all material respects, (iv) of the receipt by the Issuers
or any Subsidiary Guarantor of any notification with respect to the
suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Units or the
Exchange Units to be sold by any Participating Broker-Dealer for
offer or sale in any jurisdiction, or the initiation or threatening
of any proceeding for such purpose, (v) of the happening of any
event, the existence of any condition of any information becoming
known that makes any statement made in such Registration Statement
or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or
that requires the making of any changes in, or amendments or
supplements to, such Registration Statement, Prospectus or documents
so that, in the case of the Registration Statement and the
Prospectus, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, (vi) of
any reasonable determination by the Issuers or any Subsidiary
Guarantor that a post-effective amendment to a Registration
Statement would be appropriate and (vii) of any request by the SEC
for amendments to the Registration Statement or supplements to the
Prospectus or for additional information relating thereto.
(f) Use their reasonable best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of
any of the Registrable Units or the Exchange Units to be sold by any
Participating Broker-Dealer, for sale in any jurisdiction, and, if
any such order is issued, to use their reasonable best efforts to
obtain the withdrawal of any such order at the earliest possible
date.
(g) If (A) a Shelf Registration is filed pursuant to Section 3, (B) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Units during the Applicable Period or (C) reasonably
requested in writing by the managing underwriters, if any, or the
Holders of a majority in aggregate principal amount of the
Registrable Units being sold in connection with an underwritten
offering, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment such information or revisions to
information therein relating to such underwriters or selling Holders
as the managing underwriters, if any, or such Holders or any of
their respective counsel reasonably request in writing to be
included or made therein, and reasonably acceptable to the Issuers
and (ii) make all required filings of such Prospectus supplement or
such post-effective amendment as soon as practicable after the
Issuers have received notification of the matters to be incorporated
in such Prospectus supplements or post-effective amendment.
(h) Prior to any public offering of Registrable Units or any delivery of
a Prospectus contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Units during
the Applicable Period, use their reasonable best efforts to register
or qualify, and to cooperate with the selling Holders of Registrable
Units or each such Participating Broker-Dealer, as the case may be,
the underwriters, if any, and their respective counsel in connection
with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Units or Exchange
Units, as the case may be, for offer and sale under the securities
or Blue Sky laws of such jurisdictions within the United States as
any selling Holder, Participating Broker-Dealer or any managing
underwriter or underwriters, if any, reasonably request in writing;
provided that where Exchange Units held by Participating
Broker-Dealers or Registrable Units are offered other than through
an underwritten offering, the Issuers and each Subsidiary Guarantor
agree to cause their counsel to perform Blue Sky investigations and
use their reasonable best efforts to file any registrations and
qualifications required to be filed pursuant to this Section 6(h),
use their reasonable best efforts to keep each such registration or
qualification (or exemption therefrom) effective during the period
such Registration Statement is required to be kept effective and use
their reasonable best efforts to do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Exchange Units held by Participating
Broker-Dealers or the Registrable Units covered by the applicable
Registration Statement; provided that neither the Issuers nor any
Subsidiary Guarantor shall be required to (A) qualify generally to
do business in any jurisdiction where it is not then so qualified,
(B) take any action that would subject it to general service of
process in any such jurisdiction where it is not then so subject or
(C) subject itself to taxation in any such jurisdiction where it is
not then so subject.
(i) If (A) a Shelf Registration is filed pursuant to Section 3 or (B) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is requested to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Units during the Applicable Period, cooperate in all
reasonable respects with the selling Holders of Registrable Units
and the managing underwriter or underwriters, if any, to facilitate
the timely preparation and delivery of certificates representing
Registrable Units to be sold, which certificates shall not bear any
restrictive legends and shall be in a form eligible for
deposit with The Depository Trust Company, and enable such
Registrable Units to be in such denominations and registered in such
names as the managing underwriter or underwriters, if any, or
Holders may reasonably request.
(j) Use their reasonable best efforts to cause the Registrable Units
covered by any Registration Statement to be registered with or
approved by such governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the
underwriter, if any, to consummate the disposition of such
Registrable Units, except as may be required solely as a consequence
of the nature of such selling Holder's business, in which case the
Issuers shall (and shall cause each Subsidiary Guarantor to)
cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals; provided
that neither the Issuers nor any existing Subsidiary Guarantor shall
be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action
that would subject it to general service of process in any
jurisdiction where it is not then so subject or (C) subject itself
to taxation in any such jurisdiction where it is not then so
subject.
(k) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Units during the Applicable Period, upon the occurrence of
any event contemplated by paragraph 6(e)(v) or 6(e)(vi) hereof, as
promptly as practicable, prepare and file with the SEC, at the
expense of the Issuers and the Subsidiary Guarantors , a supplement
or post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, or file any other
required document so that, as thereafter delivered to the purchasers
of the Registrable Units being sold thereunder or to the purchasers
of the Exchange Units to whom such Prospectus will be delivered by a
Participating Broker-Dealer, such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading, and, if SEC review is required, use their reasonable
best efforts to cause such post-effective amendment to be declared
effective as soon as possible.
(l) Use their reasonable best efforts to cause the Registrable Units
covered by a Registration Statement to be rated with such
appropriate rating agencies, if so requested in writing by the
Holders of a majority in aggregate principal amount of the
Registrable Units covered by such Registration Statement or the
managing underwriter or underwriters, if any.
(m) Prior to the initial issuance of the Exchange Units, (i) provide the
Trustee with one or more certificates for the Registrable Units in a
form eligible for deposit with The Depository Trust Company and (ii)
provide a CUSIP number for the Exchange Units.
(n) If a Shelf Registration is filed pursuant to Section 3, enter into
such agreements (including an underwriting agreement in form, scope
and substance as is customary in underwritten offerings of debt
securities similar to the Units, as may be appropriate in the
circumstances) and take all such other actions in connection
therewith (including those reasonably requested in writing by the
managing underwriters, if any, or the Holders of a majority in
aggregate principal amount of the Registrable Units being sold) in
order to expedite or facilitate the registration or the disposition
of such Registrable Units, and in such connection, whether or not an
underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, (i) make such
representations and warranties to the Holders and the underwriters,
if any, with respect to the business of the Issuers and their
subsidiaries as then conducted, and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, in form, substance
and scope as are customarily made by issuers to underwriters in
underwritten offerings of debt securities similar to the Units, as
may be appropriate and reasonable in the circumstances, and confirm
the same if and when reasonably required; (ii) use reasonable best
efforts to obtain an opinion of counsel to the Issuers and the
Subsidiary Guarantors and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and the Holders
of a majority in aggregate principal amount of the Registrable Units
being sold), addressed to each selling Holder and each of the
underwriters, if any, covering the matters customarily covered in
opinions of counsel to the Issuers and the Subsidiary Guarantors
requested in underwritten offerings of debt securities similar to
the Units, as may be appropriate in the circumstances; (iii) use
reasonable best efforts to obtain "cold comfort" letters and updates
thereof (which letters and updates (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters) from
the independent certified public accountants of the Issuers and the
Subsidiary Guarantors (and, if necessary, any other independent
certified public accountants of any subsidiary of the Issuers or of
any business acquired by the Issuers for which financial statements
and financial data are, or are required to be, included in the
Registration Statement), addressed to each of the underwriters, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings of debt securities similar to the Units, as
may be appropriate in the circumstances, and such other matters as
reasonably requested in writing by the underwriters; and (iv)
deliver such documents and certificates as may be reasonably
requested in writing by the Holders of a majority in aggregate
principal amount of the Registrable Units being sold and the
managing underwriters, if any, to evidence the continued validity in
all material respects of the representations and warranties of the
Issuers and their subsidiaries made pursuant to clause (i) above and
to evidence compliance in all material respects with any conditions
contained in the underwriting agreement or other similar agreement
entered into by the Issuers or any Subsidiary Guarantor.
(o) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is
required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Units during
the Applicable Period, make available for inspection by any selling
Holder of such Registrable Units being sold, or each such
Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Units, if any,
and any attorney, accountant or other agent retained by any such
selling Holder or each such Participating Broker-Dealer, as the case
may be, or underwriter (collectively, the "Inspectors"), at the
offices where normally kept, during reasonable business hours and in
a manner so as not to be disruptive to the business or operations of
the Issuers and/or Subsidiary Guarantors, all financial and other
records and pertinent corporate documents of the Issuers and their
subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of
the Issuers and their subsidiaries to supply all information
reasonably requested in writing by any such Inspector in connection
with such Registration Statement. Each Inspector shall agree in
writing, in a form reasonably acceptable to the Issuers, that it
will keep the Records confidential and not disclose any of the
Records unless (i) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in such Registration
Statement, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction,
(iii) the information in such Records is public or has been made
generally available to the public other than as a result of a
disclosure or failure to safeguard by such Inspector or (iv)
disclosure of such information is, in the reasonable written opinion
of counsel for any Inspector, necessary or advisable in connection
with any action, claim, suit or proceeding, directly or indirectly,
involving or potentially involving such Inspector and arising out
of, based upon, related to, or involving this Agreement, or any
transaction contemplated hereby or arising hereunder. Each selling
Holder of such Registrable Units and each such Participating
Broker-Dealer will be required to agree that information obtained by
it as a result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market transactions in
the securities of the Issuers unless and until such is made
generally available to the public. Each Inspector, each selling
Holder of such Registrable Units and each such Participating
Broker-Dealer will be required to further agree that it will, upon
learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Issuers and, to the
extent practicable, use their best efforts to allow the Issuers, at
their expense, to undertake appropriate action to prevent disclosure
of the Records deemed confidential at their expense.
(p) Comply with all applicable rules and regulations of the SEC and make
generally available to the security holders of the Issuers with
regard to any Applicable Registration Statement earning statements
satisfying the provisions of section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which
Registrable Units are sold to underwriters in a firm commitment or
best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Issuers after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods.
(q) Upon consummation of an Exchange Offer or Private Exchange, use
reasonable best efforts to obtain an opinion of counsel to the
Issuers and the Subsidiary Guarantors (in form, scope and substance
reasonably satisfactory to the Initial Purchaser), addressed to the
Trustee for the benefit of all Holders participating in the Exchange
Offer or Private Exchange, as the case may be, to the effect that
(i) the Issuers and the Subsidiary Guarantors have duly authorized,
executed and delivered the Exchange Units or the Private Exchange
Units, as the case may be, and the Indenture, (ii) the Exchange
Units or the Private Exchange Units, as the case may be, and the
Indenture constitute legal, valid and binding obligations of the
Issuers and the Subsidiary Guarantors, enforceable against the
Issuers and the Subsidiary Guarantors in accordance with their
respective terms, except as such enforcement may be subject to
customary United States and foreign exceptions and (iii) all
obligations of the Issuers and the Subsidiary Guarantors under the
Exchange Units or the Private Exchange Units, as the case may be,
and the Indenture are secured by Liens (as defined in the Indenture)
on the assets securing the obligations of the Issuers and the
Subsidiary Guarantors under the Units, Indenture and Collateral
Agreements subject to customary assumptions, reliances, exceptions
and exclusions.
(r) If the Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Units by the Holders to the Issuers
and the Subsidiary Guarantors (or to such other Person as directed
by the Issuers and the Subsidiary Guarantors) in exchange for the
Exchange Units or the Private Exchange Units, as the case may be,
the Issuers and the Subsidiary Guarantors shall xxxx, or caused to
be marked, on such Registrable Units that the Exchange Units or the
Private Exchange Units, as the case may be, are being issued as
substitute evidence of the indebtedness originally evidenced by the
Registrable Units; provided that in no event shall such Registrable
Units be marked as paid or otherwise satisfied.
(s) Cooperate with each seller of Registrable Units covered by any
Registration Statement and each underwriter, if any, participating
in the disposition of such Registrable Units and their respective
counsel in connection with any filings required to be made with the
NASD.
(t) Use their reasonable best efforts to take all other steps reasonably
necessary to effect the registration of the Registrable Units
covered by a Registration Statement contemplated hereby.
(u) The Issuers may require each seller of Registrable Units or
Participating Broker-Dealer as to which any registration is being
effected to furnish to the Issuers such information regarding such
seller or Participating Broker-Dealer and the
distribution of such Registrable Units as the Issuers may, from time
to time, reasonably request in writing. The Issuers may exclude from
such registration the Registrable Units of any seller who fails to
furnish such information within a reasonable time (which time in no
event shall exceed 15 days) after receiving such request. Each
seller of Registrable Units or Participating Broker-Dealer as to
which any registration is being effected agrees to furnish promptly
to the Issuers all information required to be disclosed in order to
make the information previously furnished by such seller not
materially misleading.
(v) Each Holder of Registrable Units and each Participating
Broker-Dealer agrees by acquisition of such Registrable Units or
Exchange Units to be sold by such Participating Broker-Dealer, as
the case may be, that, upon receipt of any notice from the Issuers
of the happening of any event of the kind described in Section
6(e)(ii), 6(e)(iv), 6(e)(v), or 6(e)(vi), such Holder will forthwith
discontinue disposition of such Registrable Units covered by a
Registration Statement and such Participating Broker-Dealer will
forthwith discontinue disposition of such Exchange Units pursuant to
any Prospectus and, in each case, forthwith discontinue
dissemination of such Prospectus until such Holder's or
Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(k), or
until it is advised in writing (the "Advice") by the Issuers that
the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto and, if so
directed by the Issuers, such Holder or Participating Broker-Dealer,
as the case may be, will deliver to the Issuers all copies, other
than permanent file copies, then in such Holder's or Participating
Broker-Dealer's possession, of the Prospectus covering such
Registrable Units current at the time of the receipt of such notice.
In the event the Issuers and the Subsidiary Guarantors shall give
any such notice, the Applicable Period shall be extended by the
number of days during such periods from and including the date of
the giving of such notice to and including the date when each
Participating Broker-Dealer shall have received (x) the copies of
the supplemented or amended Prospectus contemplated by Section 6(k)
or (y) the Advice.
7. REGISTRATION EXPENSES
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuers and the Subsidiary Guarantors
shall be borne by the Issuers and the Subsidiary Guarantors, whether
or not the Exchange Offer or a Shelf Registration is filed or
becomes effective, including, without limitation, (i) all
registration and filing fees, including, without limitation, (A)
fees with respect to filings required to be made with the NASD in
connection with any underwritten offering and (B) fees and expenses
of compliance with state securities or Blue Sky laws as provided in
Section 6(h) hereof, (ii) printing expenses, including, without
limitation, expenses of printing Prospectuses if the printing of
Prospectuses is requested by the managing underwriter or
underwriters, if any, or by the Holders of a majority in aggregate
principal amount of the Registrable Units included in any
Registration Statement or by any
Participating Broker-Dealer during the Applicable Period, as the
case may be, (iii) messenger, telephone and delivery expenses
incurred in connection with the performance of their obligations
hereunder, (iv) fees and disbursements of counsel for the Issuers,
the Subsidiary Guarantors and, subject to 7(b), the Holders, (v)
fees and disbursements of all independent certified public
accountants referred to in Section 6 (including, without limitation,
the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) rating agency
fees and the fees and expenses incurred in connection with the
listing of the Securities to be registered on any securities
exchange, (vii) Securities Act liability insurance, if the Issuers
and the Subsidiary Guarantors desire such insurance, (viii) fees and
expenses of all other Persons retained by the Issuers and the
Subsidiary Guarantors, (ix) fees and expenses of any "qualified
independent underwriter" or other independent appraiser
participating in an offering pursuant to Section 3 of Schedule E to
the By-laws of the NASD, but only where the need for such a
"qualified independent underwriter" arises due to a relationship
with the Issuers and the Subsidiary Guarantors, (x) internal
expenses of the Issuers and the Subsidiary Guarantors (including,
without limitation, all salaries and expenses of officers and
employees of the Issuers or the Subsidiary Guarantors performing
legal or accounting duties), (xi) the expense of any annual audit,
(xii) the fees and expenses of the Trustee and the Exchange Agent
and (xiii) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements,
securities sales agreements, indentures and any other documents
necessary in order to comply with this Agreement.
(b) The Issuers and the Subsidiary Guarantors shall reimburse the
Holders for the reasonable fees and disbursements of not more than
one counsel chosen by the Holders of a majority in aggregate
principal amount of the Registrable Units to be included in any
Registration Statement. The Issuers and the Subsidiary Guarantors
shall pay all documentary, stamp, transfer or other transactional
taxes attributable to the issuance or delivery of the Exchange Units
or Private Exchange Units in exchange for the Units; provided that
the Issuers shall not be required to pay taxes payable in respect of
any transfer involved in the issuance or delivery of any Exchange
Unit or Private Exchange Unit in a name other than that of the
Holder of the Unit in respect of which such Exchange Unit or Private
Exchange Unit is being issued. The Issuers and the Subsidiary
Guarantors shall reimburse the Holders for fees and expenses
(including reasonable fees and expenses of counsel to the Holders)
relating to any enforcement of any rights of the Holders under this
Agreement.
8. INDEMNIFICATION
(a) Indemnification by the Issuers and the Subsidiary Guarantors. The
Issuers and the Subsidiary Guarantors jointly and severally agree to
indemnify and hold harmless each Holder of Registrable Units,
Exchange Units or Private Exchange Units and each Participating
Broker-Dealer selling Exchange Units during the Applicable Period,
each Person, if any, who controls each such Holder (within the
meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act) and the officers, directors and partners of each such
Holder, Participating Broker-Dealer and controlling person, to the
fullest extent lawful, from and against any and all losses, claims,
damages, liabilities, costs (including, without limitation,
reasonable costs of preparation and reasonable attorneys' fees as
provided in this Section 8) and expenses (including, without
limitation, reasonable costs and expenses incurred in connection
with investigating, preparing, pursuing or defending against any of
the foregoing) (collectively, "Losses"), as incurred, insofar as
such Losses arise out of or are based upon any untrue or alleged
untrue statement of a material fact contained in any Registration
Statement, Prospectus or form of prospectus, or in any amendment or
supplement thereto, or in any preliminary prospectus, or any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading, except insofar as such Losses are solely based upon
information relating to such Holder or Participating Broker-Dealer
and furnished in writing to the Issuers and the Subsidiary
Guarantors (or reviewed and approved in writing) by such Holder or
Participating Broker-Dealer or their counsel expressly for use
therein; provided, however, that the Issuers and the Subsidiary
Guarantors will not be liable to any Indemnified Party (as defined
below) under this Section 8 to the extent Losses were solely caused
by an untrue statement or omission or alleged untrue statement or
omission that was contained or made in any preliminary prospectus
and corrected in the Prospectus or any amendment or supplement
thereto if (i) the Prospectus does not contain any other untrue
statement or omission or alleged untrue statement or omission of a
material fact that was the subject matter of the related proceeding,
(ii) any such Losses resulted from an action, claim or suit by any
Person who purchased Registrable Units or Exchange Units which are
the subject thereof from such Indemnified Party and (iii) it is
established in the related proceeding that such Indemnified Party
failed to deliver or provide a copy of the Prospectus (as amended or
supplemented) to such Person with or prior to the confirmation of
the sale of such Registrable Units or Exchange Units sold to such
Person if required by applicable law, unless such failure to deliver
or provide a copy of the Prospectus (as amended or supplemented) was
a result of noncompliance by the Issuers with Section 6 of this
Agreement. The Issuers and the Subsidiary Guarantors also agree to
indemnify underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution,
their officers, directors, agents and employees and each Person who
controls such Persons (within the meaning of Section 5 of the
Securities Act or Section 20(a) of the Exchange Act) to the same
extent as provided above with respect to the indemnification of the
Holders or the Participating Broker-Dealer.
(b) Indemnification by Holder. In connection with any Registration
Statement, Prospectus or form of prospectus, any amendment or
supplement thereto, or any preliminary prospectus in which a Holder
is participating, such Holder shall furnish to the Issuers and the
Subsidiary Guarantors in writing such information as the Issuers and
the Subsidiary Guarantors reasonably request for use in
connection with any Registration Statement, Prospectus or form of
prospectus, any amendment or supplement thereto, or any preliminary
prospectus and shall indemnify and hold harmless the Issuers, the
Subsidiary Guarantors, their respective directors and each Person,
if any, who controls the Issuers and the Subsidiary Guarantors
(within the meaning of Section 15 of the Securities Act and Section
20(a) of the Exchange Act), and the directors, officers and partners
of such controlling persons, to the fullest extent lawful, from and
against all Losses insofar as such Losses arise out of or are based
upon any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or form of
prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading to the extent, but only
to the extent, that such losses are finally judicially determined by
a court of competent jurisdiction in a final, unappealable order to
have resulted solely from an untrue statement or alleged untrue
statement of a material fact or omission or alleged omission of a
material fact contained in or omitted from any information so
furnished in writing by such Holder to the Issuers and the
Subsidiary Guarantors expressly for use therein. Notwithstanding the
foregoing, in no event shall the liability of any selling Holder be
greater in amount than such Holder's Maximum Contribution Amount (as
defined below).
(c) Conduct of Indemnification Proceedings. If any proceeding shall be
brought or asserted against any Person entitled to indemnity
hereunder (an "Indemnified Party"), such Indemnified Party shall
promptly notify the party or parties from which such indemnity is
sought (the "Indemnifying Party" or "Indemnifying Parties", as
applicable) in writing; provided, that the failure to so notify the
Indemnifying Parties shall not relieve the Indemnifying Parties from
any obligation or liability except to the extent (but only to the
extent) that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal) that the
Indemnifying Parties have been prejudiced materially by such
failure.
The Indemnifying Party shall have the right, exercisable by giving written
notice to an Indemnified Party, within 20 Business Days after receipt of written
notice from such Indemnified Party of such proceeding, to assume, at its
expense, the defense of any such proceeding, provided, that an Indemnified Party
shall have the right to employ separate counsel in any such proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party or parties unless: (1) the
Indemnifying Party has agreed to pay such fees and expenses; or (2) the
Indemnifying Party shall have failed promptly to assume the defense of such
proceeding or shall have failed to employ counsel reasonably satisfactory to
such Indemnified Party; or (3) the named parties to any such proceeding
(including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party or any of its affiliates or controlling persons, and such
Indemnified Party shall have been advised by counsel that there may be one or
more defenses available to such Indemnified Party that are in addition to, or in
conflict with, those defenses available to the Indemnifying Party or such
affiliate or controlling person (in which case, if such Indemnified
Party notifies the Indemnifying Parties in writing that it elects to employ
separate counsel at the expense of the Indemnifying Parties, the Indemnifying
Parties shall not have the right to assume the defense and the reasonable fees
and expenses of such counsel shall be at the expense of the Indemnifying Party;
it being understood, however, that, the Indemnifying Party shall not, in
connection with any one such proceeding or separate but substantially similar or
related proceedings 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 (together with appropriate local counsel) at any
time for such Indemnified Party).
No Indemnifying Party shall be liable for any settlement of any such
proceeding effected without its written consent, which shall not be unreasonably
withheld, but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such proceeding, each Indemnifying Party
jointly and severally agrees, subject to the exceptions and limitations set
forth above, to indemnify and hold harmless each Indemnified Party from and
against any and all Losses by reason of such settlement or judgment. The
Indemnifying Party shall not consent to the entry of any judgment or enter into
any settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to each Indemnified Party of a release, in form and
substance reasonably satisfactory to the Indemnified Party, from all liability
in respect of such proceeding for which such Indemnified Party would be entitled
to indemnification hereunder (whether or not any Indemnified Party is a party
thereto).
(d) Contribution. If the indemnification provided for in this Section 8
is unavailable to an Indemnified Party or is insufficient to hold
such Indemnified Party harmless for any Losses in respect of which
this Section 8 would otherwise apply by its terms (other than by
reason of exceptions provided in this Section 8), then each
applicable Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall have a joint and several obligation to
contribute to the amount paid or payable by such Indemnified Party
as a result of such Losses, in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party, on the one
hand, and such Indemnified Party, on the other hand, in connection
with the actions, statements or omissions that resulted in such
Losses as well as any other relevant equitable considerations. The
relative fault of such Indemnifying Party, on the one hand, and
Indemnified Party, on the other hand, shall be determined by
reference to, among other things, whether any untrue or alleged
untrue statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by such
Indemnifying Party or Indemnified Party, and the parties' relative
intent, knowledge, access to information and opportunity to correct
or prevent any such statement or omission. The amount paid or
payable by an Indemnified Party as a result of any Losses shall be
deemed to include any legal or other fees or expenses incurred by
such party in connection with any proceeding, to the extent such
party would have been indemnified for such fees or expenses if the
indemnification provided for in Section 8(a) or 8(b) was available
to such party.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 8(d), a selling Holder
shall not be required to contribute, in the aggregate, any amount in excess of
such Holder's Maximum Contribution Amount. A selling Holder's "Maximum
Contribution Amount" shall equal the excess of (i) the aggregate proceeds
received by such Holder pursuant to the sale of such Registrable Units or
Exchange Units over (ii) the aggregate amount of damages that 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 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(d) are several in proportion to the respective principal amount
of the Registrable Securities held by each Holder hereunder and not joint. The
Issuers' and Subsidiary Guarantors' obligations to contribute pursuant to this
Section 8(d) are joint and several.
The indemnity and contribution agreements contained in this Section 8 are
in addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
9. RULES 144 AND 144A
The Issuers covenant that they shall (a) file the reports required to be
filed by them (if so required) under the Securities Act and the Exchange Act in
a timely manner and, if at any time the Issuers are not required to file such
reports, they will, upon the written request of any Holder of Registrable Units,
make publicly available other information necessary to permit sales pursuant to
Rule 144 and 144A and (b) take such further action as any Holder may reasonably
request in writing, all to the extent required from time to time to enable such
Holder to sell Registrable Units without registration under the Securities Act
pursuant to the exemptions provided by Rule 144 and Rule 144A. Upon the request
of any Holder, the Issuers shall deliver to such Holder a written statement as
to whether they have complied with such information and requirements.
10. UNDERWRITTEN REGISTRATIONS OF REGISTRABLE UNITS
If any of the Registrable Units covered by any Shelf Registration is to be
sold in an underwritten offering, the investment banker or investment bankers
and manager or managers that will manage the offering will be selected by the
Holders of a majority in aggregate principal amount of such Registrable Units
included in such offering; provided, however, that such investment banker or
investment bankers and manager or managers must be reasonably acceptable to the
Issuers.
No Holder of Registrable Units may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Units on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
11. SEPARATION EVENT
If a Separation Event occurs at any time prior to the consummation of the
Exchange Offer of the Units pursuant to this Agreement, all terms and conditions
set forth under this Agreement shall apply to each of the U.S. Notes and Dutch
Notes (as independent securities) and each of the defined terms "U.S. Notes" and
the "Dutch Notes" shall replace "Units" where appropriate and applicable so that
the U.S. Notes and Dutch Notes shall have the same rights and obligations under
this Agreement as the Units had under this Agreement prior to the occurrence of
such Separation Event.
12. MISCELLANEOUS
(a) Remedies. In the event of a breach by either the Issuers or any of
the Subsidiary Guarantors of any of their respective obligations
under this Agreement, each Holder, in addition to being entitled to
exercise all rights provided herein, in the Indenture or, in the
case of the Initial Purchaser, in the Purchase Agreement, or granted
by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Issuers and the
Subsidiary Guarantors agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by
either the Issuers or any of the Subsidiary Guarantors of any of the
provisions of this Agreement and hereby further agree that, in the
event of any action for specific performance in respect of such
breach, the Issuers shall (and shall cause each Subsidiary Guarantor
to) waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Issuers and each of the Subsidiary
Guarantors have not entered, as of the date hereof, and the Issuers
and each of the Subsidiary Guarantors shall not enter, after the
date of this Agreement, into any agreement with respect to any of
its securities that is inconsistent with the rights granted to the
Holders of Securities in this Agreement or otherwise conflicts with
the provisions hereof. The Issuers and each of the Subsidiary
Guarantors have not entered and will not enter into any agreement
with respect to any of their securities that will grant to any
Person piggy-back rights with respect to a Registration Statement.
(c) Adjustments Affecting Registrable Units. The Issuers shall not,
directly or indirectly, take any action with respect to the
Registrable Units as a class that would adversely affect the ability
of the Holders to include such Registrable Units in a registration
undertaken pursuant to this Agreement.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise
than with the prior written consent of the Holders of not less than
a majority in aggregate principal amount of the then outstanding
Registrable Units in circumstances that would adversely affect any
Holders of Registrable Units; provided, however, that Section 8 and
this Section 12(d) may not be amended, modified or supplemented
without the
prior written consent of each Holder. Notwithstanding the foregoing,
a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of
Holders of Registrable Units whose securities are being tendered
pursuant to the Exchange Offer or sold pursuant to a Units
Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other Holders of
Registrable Units may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Units being tendered
or being sold by such Holders pursuant to such Units Registration
Statement.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery,
registered first-class mail, next-day air courier or telecopier:
(i) if to a Holder of Securities or to any Participating
Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, set forth on
the records of the registrar of the Units, with a copy in like
manner to the Initial Purchaser as follows:
Xxxxxxxxx & Company, Inc.
0000 Xxxxx Xxxxxx Xxxx. 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
with a copy to:
Mayer, Brown, Xxxx & Maw LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
(ii) if to the Initial Purchaser, at the address specified in
Section 11(e)(1);
(iii) if to the Issuers or any Subsidiary Guarantor, as follows:
Phibro Animal Health Corporation
Xxx Xxxxxx Xxxxx, 000 Xxxxx Xxxxxx
Xxxx Xxx, XX 00000
Facsimile No.:
Attention: Corporate Legal Department
with a copy to:
Golenbock Xxxxxxx Assor Xxxx & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the United States mail, postage prepaid, if mailed, one
business day after being deposited in the United States mail, postage prepaid,
if mailed; one business day after being timely delivered to a next-day air
courier guaranteeing overnight delivery; and when receipt is acknowledged by the
addressee, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in such 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 hereto, including, without limitation and without the need
for an express assignment, subsequent Holders of Securities.
(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
PRINCIPLES OF CONFLICT OF LAW. THE ISSUERS HEREBY IRREVOCABLY SUBMIT
TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN
RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT, AND IRREVOCABLY ACCEPT FOR THEIR AND IN RESPECT
OF THEIR PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF
THE AFORESAID COURTS. THE ISSUERS IRREVOCABLY WAIVE, TO THE FULLEST
EXTENT THEY MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY
JURY AND ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. THE ISSUERS IRREVOCABLY CONSENT, TO THE FULLEST
EXTENT THEY MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE
SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED
OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE ISSUERS AT THEIR SAID
ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH
MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY HOLDER TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE ISSUERS IN ANY
OTHER JURISDICTION.
(j) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain
in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their best efforts
to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(k) Securities Held by the Issuers or Their Affiliates. Whenever the
consent or approval of Holders of a specified percentage of
Securities is required hereunder, Securities held by the Issuers or
their affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such
consent or approval was given by the Holders of such required
percentage.
(l) Third Party Beneficiaries. Holders and Participating Broker-Dealers
are intended third party beneficiaries of this Agreement and this
Agreement may be enforced by such Persons.
(m) Entire Agreement. This Agreement, together with the Purchase
Agreement, the Indenture and the Collateral Agreements, is intended
by the parties as a final and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject
matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts,
understanding, correspondence, conversations and memoranda between
the Initial Purchaser on the one hand and the Issuers and the
Subsidiary Guarantors on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in
interest or successors in interest with respect to the subject
matter hereof and thereof are merged herein and replaced hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PHIBRO ANIMAL HEALTH CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxx
Title President
PHILIPP BROTHERS NETHERLANDS III B.V.
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxx
Title Managing Director
By: /s/ Xxxxxx Xxxxxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title Managing Director
DOMESTIC GUARANTORS:
PRINCE AGRIPRODUCTS, INC.
PHIBROCHEM, INC.
PHIBRO ANIMAL HEALTH HOLDINGS, INC.
PHIBRO CHEMICALS, INC.
WESTERN MAGNESIUM CORP.
C P CHEMICALS, INC.
PHIBRO-TECH, INC.
PHIBRO ANIMAL HEALTH U.S., INC.
By: /s/ Xxxxx. X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
FOREIGN GUARANTORS:
PHIBRO ANIMAL HEALTH SA
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Manager
REGISTRATION RIGHTS AGREEMENT
ACCEPTED AND AGREED TO:
XXXXXXXXX & COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Managing Director
REGISTRATION RIGHTS AGREEMENT
