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REGISTRATION RIGHTS AGREEMENT
DATED AS OF NOVEMBER 13, 1997
BY AND AMONG
BIG 5 CORP.,
AS ISSUER
AND
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
AND
CREDIT SUISSE FIRST BOSTON CORPORATION,
AS INITIAL PURCHASERS
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of November 13, 1997, among BIG 5 CORP., a Delaware corporation
(the "Issuer"), and XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION and
CREDIT SUISSE FIRST BOSTON CORPORATION (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated
November 7, 1997, among the Issuer and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Issuer to the Initial
Purchasers of $131,000,000 aggregate principal amount of Series A 10 7/8% Senior
Notes due 2007 (the "Notes"). In order to induce the Initial Purchasers to enter
into the Purchase Agreement, the Issuer has agreed to provide to the Initial
Purchasers and their respective direct and indirect transferees, among other
things, the registration rights for the Notes set forth in this Agreement. The
execution of this Agreement is a condition to the closing of the transactions
contemplated by the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings (and, unless otherwise indicated, capitalized terms used
herein without definition shall have the respective meanings ascribed to them by
the Purchase Agreement):
Applicable Period: See Section 2(b) hereof.
controlling person: See Section 7 hereof.
Effectiveness Period: See Section 3(a) hereof.
Effectiveness Target Date: See Section 4(a)(ii) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
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Exchange Notes: See Section 2(a) hereof.
Exchange Offer: See Section 2(a) hereof.
Exchange Offer Registration Statement: See Section 2(a) hereof.
Holder: Any holder of Transfer Restricted Securities.
indemnified party: See Section 7 hereof.
Indemnified Person: See Section 7 hereof.
indemnifying person: See Section 7 hereof.
Indenture: The Indenture, dated as of the date hereof, by and
between the Issuer and First Trust National Association, as trustee, pursuant to
which the Notes are being issued, as amended or supplemented from time to time
in accordance with the terms thereof.
Initial Purchasers: See the introductory paragraphs to this
Agreement.
Inspectors: See Section 5(m) hereof.
Issue Date: As defined in the Offering Memorandum.
Issuer: See the introductory paragraphs to this Agreement.
Liquidated Damages: See Section 4(a) hereof.
Notes: See the introductory paragraphs to this Agreement.
Offering Memorandum: The final Offering Memorandum dated November 8,
1997 related to the sale of the Notes.
Participating Broker-Dealer: See Section 2(b) hereof.
Person or person: An individual, trustee, corporation, partnership,
joint stock company, trust, unincorporated association, union, business
association, limited liability company, limited liability partnership, firm or
other legal entity.
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Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any 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 offering of any portion of the
Exchange Notes and/or the Transfer Restricted Securities (as applicable),
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.
Records: See Section 5(m) hereof.
Registration Default: See Section 4(a)(iv) hereof.
Registration Statement: Any registration statement of the Issuer,
including, but not limited to, the Exchange Offer Registration Statement or a
registration statement of the Issuer that otherwise covers any of the Transfer
Restricted Securities 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 pursuant to the Securities Act, as
currently in effect, as such rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
Rule 144A: Rule 144A promulgated pursuant to the Securities Act, as
currently in effect, as such rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated pursuant to 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 Act: The Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
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Shelf Notice: See Section 2(c) hereof.
Shelf Registration Statement: See Section 3(a) hereof.
TIA: The Trust Indenture Act of 1939, as amended, and the rules and
regulations of the SEC promulgated thereunder.
Transfer Restricted Securities: The Notes upon original issuance
thereof and at all times subsequent thereto, until in the case of any such
Notes, the earliest to occur of, the date on which (i) a Registration Statement
covering such Notes has been declared effective by the SEC and such Notes have
been disposed of in accordance with such effective Registration Statement, (ii)
such Notes are sold in compliance with Rule 144 or are eligible for sale under
Rule 144(k) or (iii) such Notes cease to be outstanding (including, without
limitation, upon an exchange of such Notes for Exchange Notes in the Exchange
Offer).
Trustee: The trustee under the Indenture and, if existent, under any
indenture governing the Exchange Notes.
Underwritten registration or underwritten offering: A registration
in which securities of the Issuer are sold to an underwriter for reoffering to
the public.
2. Exchange Offer
(a) The Issuer agrees to file with the SEC within 60 days after the
Issue Date a registration statement under the Securities Act with respect to an
offer to exchange (the "Exchange Offer") any and all of the Transfer Restricted
Securities for a like aggregate principal amount of debt securities of the
Issuer (the "Exchange Notes"), which Exchange Notes will be (i) substantially
identical in all material respects to the Notes, except that such Exchange
Notes will not contain terms with respect to transfer restrictions, and (ii)
entitled to the benefits of the Indenture or a trust indenture which is
identical to the Indenture (other than such changes to the Indenture or any such
identical trust indenture as are necessary to comply with any requirements of
the SEC to effect or maintain the qualification thereof under the TIA), and
which, in either case, has been qualified under the TIA, and (iii) registered
pursuant to an effective Registration Statement in compliance with the
Securities Act. The Exchange Offer will be registered pursuant to the Securities
Act on an appropriate form of Registration Statement (the "Exchange Offer
Registration Statement"), and will comply with all applicable tender offer rules
and regulations promulgated
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pursuant to the Exchange Act and shall be duly registered or qualified pursuant
to all applicable state securities or Blue Sky laws, except as would subject the
Issuer to general taxation or service of process where it is not currently
subject. The Exchange Offer shall not be subject to any condition, other than
that the Exchange Offer does not violate any applicable law, policy or
interpretation of the staff of the SEC. No securities shall be included in the
Exchange Offer Registration Statement other than the Exchange Notes. The Issuer
agrees (x) to use its reasonable best efforts to cause such Exchange Offer
Registration Statement to be declared effective under the Securities Act within
135 days after the Issue Date; (y) to keep the Exchange Offer open for not less
than 30 days (or such longer period required by applicable law) after the date
that the notice of the Exchange Offer referred to below is mailed to Holders;
and (z) to use its reasonable best efforts to consummate the Exchange Offer
within 45 days after the Effectiveness Target Date. As promptly as practicable
after the Exchange Offer Registration Statement is declared effective, the
Issuer will commence the offer of Exchange Notes in exchange for properly
tendered Notes. For each Note validly tendered pursuant to the Exchange Offer,
the holder of such Note will receive the Exchange Notes having a principal
amount at maturity equal to that of the tendered Note.
Each Holder who participates in the Exchange Offer will be required
to represent that any Exchange Notes received by it will be acquired in the
ordinary course of its business, that at the time of the consummation of the
Exchange Offer such Holder will have no arrangement or understanding with any
person to participate in the distribution (within the meaning of the Securities
Act) of the Exchange Notes, and that such Holder is not an "affiliate" of the
Issuer within the meaning of Rule 405 of the Securities Act (or that if it is
such an affiliate, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable). Each Holder that
is not a Participating Broker-Dealer will be required to represent that it is
not engaged in, and does not intend to engage in, the distribution of the
Exchange Notes. Each Holder that (i) is a Participating Broker-Dealer and (ii)
will receive Exchange Notes for its own account in exchange for the Transfer
Restricted Securities that it acquired as the result of market-making or other
trading activities will be required to acknowledge that it will deliver a
Prospectus as required by law in connection with any resale of such Exchange
Notes. The Issuer shall allow Participating Broker-Dealers and other persons, if
any, subject to prospectus delivery requirements to use the Prospectus included
in the Exchange Offer Registration Statement in connection with the resale of
the Exchange Notes. Upon consummation of the Exchange Offer in accordance with
this Agreement, the Issuer shall have no further
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obligation to register Transfer Restricted Securities pursuant to Section 3 of
this Agreement.
(b) The Issuer shall include within the Exchange Offer Registration
Statement a section entitled "Plan of Distribution," reasonably acceptable to
the Initial Purchasers, 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 acquired Notes as the result of
market-making activities or other trading activities (and not directly from the
Issuer) and is the beneficial owner (as defined in Rule 13d-3 under the Exchange
Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a
"Participating Broker-Dealer"). Such "Plan of Distribution" section shall also
allow the use of the Prospectus by all persons subject to the prospectus
delivery requirements of the Securities Act, including all Participating
Broker-Dealers, and include a statement describing the means by which
Participating Broker-Dealers may resell the Exchange Notes.
The Issuer shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement effective under the Securities Act 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 is
necessary to comply with applicable law and the policies, rules and regulations
of the SEC as announced from time to time in connection with any resale of the
Exchange Notes provided that such period shall not exceed 180 days from the
consummation of the Exchange Offer (or such longer period if extended pursuant
to the last paragraph of Section 5 hereof) (the "Applicable Period").
In connection with the Exchange Offer, the Issuer shall:
(a) mail as promptly as practicable to each Holder a copy of the
Prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related documents;
(b) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York; and
(c) permit Holders to withdraw tendered Notes 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.
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As soon as practicable after the close of the Exchange Offer, the
Issuer shall:
(i) accept for exchange all Notes tendered and not validly withdrawn
pursuant to the Exchange Offer;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each
Holder of Notes, Exchange Notes equal in principal amount to the Notes of
such Holder so accepted for exchange.
(c) If (1) prior to the consummation of the Exchange Offer, any
change in law or in the applicable interpretations of the staff of the SEC do
not permit the Issuer to effect the Exchange Offer, or (2) for any other reason
the Exchange Offer is not consummated within 180 days of the Issue Date, then
the Issuer shall as promptly as practicable deliver to the Holders and the
Trustee written notice thereof (the "Shelf Notice"), and the Issuer shall file a
Registration Statement pursuant to Section 3 hereof. Following the delivery of a
Shelf Notice to the Holders of Transfer Restricted Securities, the Issuer shall
not have any further obligation to conduct the Exchange Offer pursuant to this
Section 2.
3. Shelf Registration
If the Issuer is required to deliver a Shelf Notice as contemplated
by Section 2(c) hereof, then:
(a) Shelf Registration. The Issuer shall prepare and file with the
SEC, within 45 days after such filing obligation arises, a Registration
Statement for an offering to be made on a continuous basis pursuant to Rule 415
covering all of the Transfer Restricted Securities (the "Shelf Registration
Statement"). The Shelf Registration Statement shall be on Form S-1 or another
appropriate form permitting registration of the Transfer Restricted Securities
for resale by the Holders in the manner or manners designated by the Holders of
a majority in aggregate principal amount of the outstanding Transfer Restricted
Securities (including, without limitation, an underwritten offering). The
Issuer shall not permit any securities other than the Transfer Restricted
Securities to be included in the Shelf Registration Statement. The Issuer shall
use its reasonable best efforts to cause the Shelf Registration Statement to be
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declared effective pursuant to the Securities Act on or prior to 135 days after
such obligation arises and to keep the Shelf Registration Statement continuously
effective under the Securities Act until the earlier of (i) the date which is 24
months following the Issue Date (or such longer period if extended pursuant to
the last paragraph of Section 5 hereof), (ii) the date that all Transfer
Restricted Securities covered by the Shelf Registration Statement have been sold
in the manner set forth and as contemplated in the Shelf Registration Statement
or (iii) the date that there ceases to be outstanding any Transfer Restricted
Securities (the "Effectiveness Period").
(b) Supplements and Amendments. The Issuer shall use its reasonable
best efforts to keep the Shelf Registration Statement continuously effective
during the Effectiveness Period by supplementing and amending the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used for such Shelf Registration Statement,
or if reasonably requested in writing timely received setting forth the reasons
for such request by the Holders of a majority in aggregate principal amount of
the Transfer Restricted Securities covered by such Registration Statement or by
any underwriter of such Transfer Restricted Securities.
4. Liquidated Damages
(a) The Issuer and the Initial Purchasers agree that the Holders of
Transfer Restricted Securities will suffer damages if the Issuer fails to
fulfill its obligations pursuant to Section 2 or Section 3 hereof and that it
would not be possible to ascertain the extent of such damages. Accordingly, in
the event of such failure by the Issuer to fulfill such obligations, the Issuer
hereby agrees to pay liquidated damages ("Liquidated Damages") to each Holder of
Transfer Restricted Securities under the circumstances and to the extent set
forth below:
(i) if either the Exchange Offer Registration Statement or, if
applicable, the Shelf Registration Statement has not been filed with the
SEC on or prior to the applicable date specified for such filing; or
(ii) if either the Exchange Offer Registration Statement or, if
applicable, the Shelf Registration Statement is not declared effective by
the SEC on or prior to the applicable date specified for such
effectiveness (the "Effectiveness Target Date"); or
(iii) if an Exchange Offer Registration Statement becomes effective,
but the Issuer fails to consummate the Exchange Offer within 45 days of
the
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earlier of the effectiveness of such registration statement or 135 days
after the Issue Date; or
(iv) the Shelf Registration Statement is declared effective by the
SEC but thereafter such Shelf Registration Statement ceases to be
effective or usable in connection with resales of Notes during the
Effectiveness Period;
(any of the foregoing, a "Registration Default"), then the Issuer shall pay
Liquidated Damages to each Holder, with respect to the first 90-day period or
portion thereof immediately following the occurrence of such Registration
Default, in an amount equal to $0.05 per week per $1,000 principal amount of
Transfer Restricted Securities held by such Holder. Upon a Registration Default,
Liquidated Damages will accrue at the rate specified above until such
Registration Default is cured and the amount of Liquidated Damages will increase
by an additional $0.05 per week per $1,000 principal amount of Transfer
Restricted Securities with respect to each subsequent 90-day period or portion
thereof, up to a maximum amount of Liquidated Damages of $0.30 per week per
$1,000 principal amount of Transfer Restricted Securities (regardless of whether
one or more than one Registration Default is outstanding). Following the cure of
any Registration Default relating to any Transfer Restricted Securities, the
accrual of Liquidated Damages with respect to such Registration Default will
cease. A Registration Default under clause (i) above shall be cured on the date
that the Exchange Offer Registration Statement or the Shelf Registration
Statement, as applicable, is filed with the SEC; a Registration Default under
clause (ii) above shall be cured on the date that the Exchange Offer
Registration Statement or the Shelf Registration Statement, as applicable, is
declared effective by the SEC; a Registration Default under clause (iii) above
shall be cured on the earlier of the date (A) the Exchange Offer is consummated
or (B) the Issuer delivers a Shelf Notice to the Holders of Transfer Restricted
Securities; and a Registration Default under clause (iv) above shall be cured on
the earlier of (A) the date the Shelf Registration Statement is declared
effective and is usable or (B) the Effectiveness Period expires.
(b) The Issuer shall notify the Trustee within one business day
after each and every date on which a Registration Default first occurs. Accrued
and unpaid Liquidated Damages shall be paid by the Issuer to the Holders by wire
transfer of immediately available funds to the accounts specified by them or by
mailing checks to their registered addresses if no such accounts have been
specified on each interest payment date provided in the Indenture (whether or
not any interest is then payable on the Notes) and on each payment date provided
in the Indenture, including, without limitation, whether upon redemption,
maturity (by acceleration or otherwise),
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purchase upon a change of control or purchase upon a sale of assets. Each
obligation to pay Liquidated Damages with respect to any Registration Default
shall be deemed to commence accruing on the date of such Registration Default
and to cease accruing when such Registration Default has been cured. In no event
shall the Issuer pay Liquidated Damages in excess of the applicable maximum
weekly amount set forth above, regardless of whether one or multiple
Registration Defaults exist.
(c) The parties hereto agree that the Liquidated Damages provided
for in this Section 4 constitute a reasonable estimate of the damages that will
be suffered by Holders by reason of the failure to file the Exchange Offer
Registration Statement or the Shelf Registration Statement, the failure of the
Exchange Offer Registration Statement or the Shelf Registration Statement to be
declared effective, the failure to consummate the Exchange Offer or the failure
of the Shelf Registration Statement to remain effective, as the case may be, in
accordance with this Agreement.
5. Registration Procedures
In connection with the registration of any Exchange Notes or
Transfer Restricted Securities pursuant to Sections 2 or 3 hereof, the Issuer
shall effect such registration to permit the sale of such Exchange Notes or
Transfer Restricted Securities (as applicable) in accordance with the intended
method or methods of disposition thereof, and pursuant thereto the Issuer
shall:
(a) Prepare and file with the SEC, a Registration Statement or
Registration Statements as prescribed by Section 2 or Section 3 hereof, and to
use its reasonable best efforts to cause such Registration Statement to become
effective and remain effective as provided herein; provided that if (1) such
filing is pursuant to Section 3 hereof, or (2) a Prospectus contained in an
Exchange Offer Registration Statement filed pursuant to Section 2 hereof is
required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period,
before filing any Registration Statement or Prospectus or any amendments or
supplements thereto, the Issuer shall furnish to and afford the Holders of the
Transfer Restricted Securities and each such Participating Broker-Dealer, as the
case may be, covered by such Registration Statement, their counsel and the
managing underwriters, if any, 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. Such documents
shall be so furnished at least 3 business days prior to such filing, or such
later date as is reasonable under the circumstances. The Issuer shall not file
any Registration
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Statement or Prospectus or any amendments or supplements thereto in respect of
which the Holders, pursuant to this Agreement, must be afforded an opportunity
to review prior to the filing of such document, if the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities covered by such
Registration Statement, or such Participating Broker-Dealer, as the case may be,
their counsel, or the managing underwriters, if any, shall reasonably object
within a reasonable time after receipt of any such materials.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement or Exchange Offer 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, or such shorter period as will terminate when all
Transfer Restricted Securities covered by such Registration Statement have been
sold; cause the related Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) under the Securities Act; and comply with the
applicable provisions of the Securities Act, the Exchange Act and the rules and
regulations of the SEC promulgated thereunder 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 Exchange Notes being sold by a Participating Broker-Dealer covered by any
such Prospectus; the Issuer shall be deemed not to have used its reasonable best
efforts to keep a Registration Statement effective during the Applicable Period
or the Effectiveness Period, as the case may be, if it voluntarily takes any
action that would result in selling Holders of the Transfer Restricted
Securities covered thereby or Participating Broker-Dealers seeking to sell
Exchange Notes not being able to sell such Transfer Restricted Securities or
such Exchange Notes during such Period, unless (i) such action is required by
applicable law, or (ii) such action is taken by the Issuer in good faith and for
valid business reasons (not including avoidance of its obligations hereunder),
including, but not limited to, suspension of the Registration Statement or other
actions taken solely in connection with or in anticipation of the acquisition or
divestiture of assets, material financings or other transactions effected in
good faith for valid business reasons.
(c) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, notify the selling Holders
of Transfer Restricted Securities, or each
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known Participating Broker-Dealer, as the case may be, their counsel (if
previously identified to the Issuer in writing) and the managing underwriters,
if any, as promptly as practicable and, if requested, confirm such notice in
writing, (i) when a Prospectus, 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 (including in any
such written notice a statement that any Holder may, upon request, obtain,
without charge, one conformed copy of such Registration Statement or
post-effective amendment including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and exhibits), (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 a Prospectus is required by the Securities Act to be delivered in
connection with sales of the Transfer Restricted Securities or resales of the
Exchange Notes the representations and warranties of the Issuer contained in
any agreement (including any underwriting agreement) contemplated by Section
5(l) hereof cease to be true and correct in all material respects, (iv) of the
receipt by the Issuer of any notification with respect to the suspension of the
qualification or exemption from qualification of a Registration Statement or any
of the Transfer Restricted Securities or the Exchange Notes to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction, or the
initiation of any proceeding for such purpose, (v) of the happening of any
material event or any material 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 such
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, 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 not misleading, and that in the case of
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, and (vi) of the Issuer's reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate.
(d) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, use its reasonable best
efforts to prevent the issuance of any order
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suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus and, if any such order is
issued, to use its reasonable best efforts to obtain the withdrawal of any such
order at the earliest possible moment.
(e) If a Shelf Registration Statement is filed pursuant to Section 3
hereof and if requested by the managing underwriters, if any, or the Holders of
a majority in aggregate principal amount of the Transfer Restricted Securities
being sold in connection with an underwritten offering, (i) as promptly as
practicable incorporate in a prospectus supplement or post-effective amendment
such information relating to underwriters, if any, any Holder of Transfer
Restricted Securities or the plan of distribution of the Transfer Restricted
Securities as the managing underwriter, if any, or such Holders may reasonably
request to be included therein, (ii) make all required filings of such
prospectus supplement or such post-effective amendment as soon as practicable
after the Issuer has received notification of the matters to be incorporated in
such prospectus supplement or post-effective amendment pursuant to clause (i),
and (iii) supplement or make amendments to such Registration Statement with such
information as is required in connection with any reasonable request made
pursuant to clause (i).
(f) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, furnish to each selling
Holder of Transfer Restricted Securities and to each such Participating
Broker-Dealer who so requests and to each managing underwriter, if any, without
charge, one conformed copy of the Registration Statement or Registration
Statements and each post-effective amendment thereto, including financial
statements and schedules, and, if requested, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, deliver to each selling
Holder, or each such Participating Broker-Dealer, as the case may be, its
counsel (if previously identified to the Issuer in writing), and the
underwriters, if any, without charge, as many copies of the Prospectus or
Prospectuses (including each form of preliminary Prospectus), and each amend-
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ment or supplement thereto and any documents incorporated by reference therein,
as such Persons may reasonably request; and, subject to the last paragraph of
this Section 5 hereof, the Issuer hereby consents to the use of such Prospectus
and each amendment or supplement thereto by each of the selling Holders or,
during the Applicable Period, each such Participating Broker-Dealer, as the case
may be, and their underwriters or agents, if any, and dealers, if any, in
connection with the offering and sale of the Transfer Restricted Securities
covered by, or the sale by Participating Broker-Dealers of the Exchange Notes
pursuant to, such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Transfer Restricted Securities
or any delivery of a Prospectus contained in the Exchange Offer Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, use its reasonable best efforts to register or
qualify, and to cooperate with the selling Holders of Transfer Restricted
Securities 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 Transfer Restricted Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as any selling Holder,
Participating Broker-Dealer, or the managing underwriters reasonably request in
writing; keep each such registration or qualification (or exemption therefrom),
effective during the period such Registration Statement is required to be kept
effective and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of the Exchange Notes
held by Participating Broker-Dealers or the Transfer Restricted Securities
covered by the applicable Registration Statement; provided that the Issuer shall
not be required to (A) qualify as a foreign corporation or as a dealer in
securities 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 Shelf Registration Statement is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Transfer Restricted Securities and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities 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 ("DTC"), and enable such
Transfer Restricted Securities to be in such denominations and registered in
such names as the managing
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underwriters, if any, or Holders may reasonably request at least two business
days prior to any sale of the Transfer Restricted Securities.
(j) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, upon the occurrence of any
event contemplated by paragraph 5(c)(v) or 5(c)(vi) above, as promptly as
practicable prepare and (subject to Section 5(a) hereof) file with the SEC, at
the expense of the Issuer, 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 Transfer Restricted Securities being sold thereunder or to the purchasers
of the Exchange Notes to whom such Prospectus will be delivered by a
Participating Broker-Dealer, any 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.
(k) Prior to the effective date of the first Registration Statement
relating to the Transfer Restricted Securities, (i) provide the Trustee with
certificates for the Transfer Restricted Securities in a form eligible for
deposit with DTC and (ii) provide a CUSIP number for the Transfer Restricted
Securities.
(l) In connection with an underwritten offering of Transfer
Restricted Securities pursuant to a Shelf Registration Statement, enter into an
underwriting agreement as is customary in underwritten offerings and take all
other customary and appropriate actions as are reasonably requested by the
managing underwriters in order to expedite or facilitate the registration or the
disposition of such Transfer Restricted Securities, and in such connection, (i)
make such representations and warranties to the underwriters, with respect to
the business of the Issuer and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, as are customarily made by issuers to underwriters in
underwritten offerings; (ii) obtain opinions of counsel to the Issuer and
updates thereof in form and sub-
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stance reasonably satisfactory to the managing underwriters, addressed to the
underwriters covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by
underwriters; (iii) obtain "cold comfort" letters and updates thereof in form
and substance reasonably satisfactory to the managing underwriters from the
independent certified public accountants of the Issuer (and, if necessary, any
other independent certified public accountants of any subsidiary of the Issuer
or of any business acquired or proposed to be acquired by it 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 and such other
matters as are reasonably requested by underwriters as permitted by Statement on
Auditing Standards No. 72; and (iv) if an underwriting agreement is entered
into, the same shall contain indemnification provisions and procedures no less
favorable than those set forth in Section 7 hereof (or such other reasonable
provisions and procedures acceptable to Holders of a majority in aggregate
principal amount of Transfer Restricted Securities covered by such Registration
Statement and the managing underwriters) with respect to all parties to be
indemnified pursuant to said Section. The above shall be done at each closing
under such underwriting agreement, or as and to the extent required thereunder.
(m) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, make available for
inspection by any selling Holder of such Transfer Restricted Securities being
sold, or each such Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of Transfer Restricted
Securities, 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, all financial and other
records, pertinent corporate documents and properties of the Issuer and its
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 Issuer and its subsidiaries to
supply all relevant information reasonably requested by any such Inspector in
connection with such Registration Statement. Records which the Issuer
determines, in good faith, to be confidential and any Records which it notifies
the Inspectors are confidential shall not be disclosed by the Inspectors, unless
(i) the release of such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction or (ii) the information in such Records
has been made generally available to the public, other than as a result of the
disclosure or failure to safeguard by such Inspector. No information obtained
pursuant to this paragraph (m)
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shall be used by any person or entity obtaining access thereto in connection
with any transactions in securities of the Issuer in violation of law. In
addition, notwithstanding anything to the contrary contained herein, the Issuer
shall not be required to provide any information to the Holders or the
underwriters that the Issuer is prohibited by law from disclosing.
(n) Provide an indenture trustee for the Transfer Restricted
Securities or the Exchange Notes, as the case may be, and cause the Indenture to
be qualified under the TIA not later than the effective date of the Exchange
Offer or the first Registration Statement relating to the Transfer Restricted
Securities; and in connection therewith, cooperate with the trustee under any
such indenture and the Holders of the Transfer Restricted Securities, 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 its
reasonable best efforts to cause such trustee to execute, all customary
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.
(o) Comply with all applicable rules and regulations of the SEC and,
as soon as reasonably practicable after the effective date of the applicable
Registration Statement, make generally available to the holders of Exchange
Notes and the Holders, if any, a consolidated earning statement of the Issuer
(which need not be certified by an independent public accountant) that satisfies
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(p) If an Exchange Offer is to be consummated, upon delivery of the
Transfer Restricted Securities by Holders to the Issuer (or to such other Person
as directed by the Issuer), in exchange for the Exchange Notes, the Issuer
shall, where appropriate, xxxx or cause to be marked on such Transfer Restricted
Securities that such Transfer Restricted Securities are being cancelled in
exchange for the Exchange Notes; in no event shall such Transfer Restricted
Securities be marked as paid or otherwise satisfied.
(q) Cooperate with each seller of Transfer Restricted Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Transfer Restricted Securities and
their respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. (the "NASD").
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(r) Use its reasonable best efforts to take all other steps
necessary to effect the registration of the Transfer Restricted Securities
covered by a Registration Statement contemplated hereby.
(s) Use its reasonable best efforts to cause the Transfer Restricted
Securities or the Exchange Notes, as applicable, covered by an effective
registration statement required by Section 2 or Section 3 hereof to be rated by
one or two rating agencies, if and as so requested by the Holders of a majority
in aggregate principal amount of Transfer Restricted Securities relating to such
registration statement or the managing underwriters in connection therewith, if
any.
The Issuer may require each seller of Transfer Restricted Securities
or Participating Broker-Dealer as to which any registration is being effected to
furnish to the Issuer such information regarding such seller or Participating
Broker-Dealer and the distribution of such Transfer Restricted Securities or
Exchange Notes to be sold by such Participating Broker-Dealer, as the case may
be, as the Issuer may, from time to time, reasonably request. The Issuer may
exclude from such registration the Transfer Restricted Securities or Exchange
Notes of any seller or Participating Broker-Dealer, as the case may be, who
fails to furnish such information within a reasonable time (and in any event
within ten business days) after receiving such request. Each seller of Transfer
Restricted Securities as to which a Shelf Registration is being effected, and
each Participating Broker-Dealer utilizing a Prospectus from the Exchange Offer
Registration Statement, agrees to furnish reasonably promptly to the Issuer all
information required to be disclosed in order to make any information previously
furnished to the Issuer by such seller or Participating Broker-Dealer not
materially misleading. No such seller or Participating Broker-Dealer, as
applicable, shall be entitled to Liquidated Damages pursuant to Section 4 hereof
if such person fails so to provide all such reasonably requested information to
the extent that any such failure by such person is the primary reason for the
assessment of Liquidated Damages.
Each Holder of Transfer Restricted Securities and each Participating
Broker-Dealer agrees by acquisition of such Transfer Restricted Securities or
Exchange Notes to be sold by such Participating Broker-Dealer, as the case may
be, that, upon receipt of any notice from the Issuer of the happening of any
event of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi)
hereof, such Holder shall forthwith discontinue disposition of such Transfer
Restricted Securities covered by such Registration Statement or Prospectus or
such Exchange Notes to be sold by such Participating Broker-Dealer, as the case
may be, until such Holder's or Participating
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Broker-Dealer's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(j) hereof, or until it is advised in writing by the
Issuer that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto. In the event the
Issuer gives any such notice, and subsequently delivers to each Holder or
Participating Broker-Dealer copies of such supplemented or amended Prospectus,
then each Holder or Participating Broker-Dealer will either destroy or return to
the Issuer all copies (other than permanent file copies then in such Holder's or
Participating Broker-Dealer's possession) of any Prospectus that, as a result of
such occurrence leading to such notice, is no longer accurate.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuer shall be borne by the Issuer,
whether or not the Exchange Offer or a Shelf Registration Statement 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 an underwritten offering
and (B) fees and expenses of compliance with state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of counsel in
connection with Blue Sky qualifications of the Transfer Restricted Securities or
Exchange Notes), (ii) printing expenses (including, without limitation, expenses
of printing certificates for Transfer Restricted Securities or Exchange Notes in
a form eligible for deposit with DTC and of printing Prospectuses if the
printing of Prospectuses is requested by the managing underwriters, if any, or,
in respect of Transfer Restricted Securities or Exchange Securities to be sold
by any Participating Broker-Dealer during the Applicable Period, by the Holders
of a majority in aggregate principal amount of the Transfer Restricted
Securities included in any Registration Statement or of such Exchange
Securities, as the case may be), (iii) fees and disbursements of counsel for the
Issuer, (iv) fees and disbursements of all independent certified public
accountants referred to in Section 5(l)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (v) the 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,
(vi) rating agency fees, (vii) fees and expenses of all other Persons retained
by the Issuer, (viii) internal expenses of the Issuer (including, without
limitation, all salaries and expenses of officers and employees of the Issuer
performing legal or accounting duties), (ix) the expense of any required
financial audits and (x) the fees and expenses incurred in
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connection with the listing of the securities to be registered on any securi
ties exchange. Nothing contained in this Section 6 shall create an obligation on
the part of the Issuer to pay or reimburse any Holder for any underwriting
commission or discount attributable to any such Holder's Transfer Restricted
Securities included in an underwritten offering pursuant to a Registration
Statement filed in accordance with the terms of this Agreement, or to guarantee
such Holder any profit or proceeds from the sale of such Notes.
(b) In connection with any Shelf Registration Statement hereunder,
the Issuer shall reimburse the Holders of the Transfer Restricted Securities
being registered in such registration for the reasonable fees and disbursements
of not more than one firm of attorneys chosen by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities to be included
in such Registration Statement.
7. Indemnification
The Issuer agrees to indemnify and hold harmless (i) each of the
Purchasers, each Holder of Transfer Restricted Securities, each Holder of
Exchange Securities and each Participating Broker-Dealer, (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 such Person (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 of such Person or any controlling person (any
person referred to in clause (i), (ii) or (iii) may hereinafter be referred to
as an "Indemnified Person") to the fullest extent lawful, from and against any
and all losses, claims, damages, liabilities, judgments, actions and reasonable
expenses (including, without limitation, and as incurred, reimbursement of all
reasonable costs of investigating, preparing, pursuing 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 Person) 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 (as amended
or supplemented if the Issuer shall have furnished any amendments or supplements
thereto) or any preliminary Prospectus, or caused by, arising out of or based
upon 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, claims, damages, liabilities or expenses are caused by
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(i) any untrue statement or omission or alleged untrue state ment or omission
made in reliance upon and in conformity with information relating to any
Indemnified Person furnished to the Issuer or any underwriter in writing by such
Indemnified Person expressly for use therein, or (ii) any untrue statement
contained in or omission from a preliminary Prospectus or Prospectus, as
applicable, if a copy of the Prospectus (as then amended or supplemented, if the
Issuer shall have furnished to or on behalf of the Holder participating in the
distribution relating to the relevant Registration Statement any amendments or
supplements thereto) was not sent or given by or on behalf of such Holder to the
person asserting any such losses, liabilities, claims, damages or expenses who
purchased Securities, if such is required by law at or prior to the written
confirmation of the sale of such Securities to such person and the untrue
statement contained in or omission from such preliminary Prospectus or
Prospectus, as applicable, was corrected in the Prospectus (as then amended or
supplemented). The Issuer shall notify the Holders promptly upon becoming aware
thereof of the institution, threat or assertion of any claim, proceeding
(including any governmental investigation) or litigation of which it shall have
become aware in connection with the matters addressed by this Agreement which
involves the Issuer or an Indemnified Person.
In connection with any Registration Statement in which a Holder of
Transfer Restricted Securities is participating, such Holder of Transfer
Restricted Securities agrees, severally and not jointly, to indemnify and hold
harmless the Issuer and its directors, officers, partners, employees,
representatives and agents and each person who controls the Issuer within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Issuer to each Indemnified
Person, but only with reference to information relating to such Indemnified
Person and furnished to the Issuer in writing by such Indemnified Person
expressly for use in any Registration Statement or Prospectus, any amendment or
supplement thereto, or any preliminary Prospectus. The liability of any
Indemnified Person pursuant to this paragraph shall in no event exceed the
proceeds (net of reasonable commissions) received by such Indemnified Person
from sales of Transfer Restricted Securities or Exchange Notes giving rise to
such obligations.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought (the "indemnifying
person") in writing, (provided that the failure to give such notice shall not
relieve the indemnify-
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ing person of its obligations under this Section 7 unless and only to the extent
that the indemnifying person is materially prejudiced by the failure to notify)
and the indemnifying person, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying person may reasonably
designate in such proceeding and shall pay the reasonable fees and expenses
actually incurred by such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party, unless (i) the indemnifying person and the indemnified
party shall have mutually agreed in writing to the contrary, (ii) the
indemnifying person shall have failed promptly to assume the defense and employ
counsel reasonably satisfactory to the indemnified party or (iii) the named
parties to any such action (including any impleaded parties) include both such
indemnified party and the indemnifying person, or any affiliate of the
indemnifying person and such indemnified party shall have been reasonably
advised by counsel that representation of such indemnified party and any such
indemnifying party by the same counsel would be inappropriate under applicable
standards of professional conduct (whether or not such representation by the
same counsel has been proposed) due to actual or potential differing interests
between them (in which case the indemnifying person shall not have the right to
assume the defense of such action on behalf of such indemnified party), it being
understood, however, that the indemnifying person shall not, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) for all such
indemnified parties, which firm shall be reasonably satisfactory to the
indemnifying parties. Such separate firm for sellers of Transfer Restricted
Securities shall be designated in writing by those indemnified parties who sold
a majority in outstanding aggregate principal amount of Transfer Restricted
Securities sold by all such indemnified parties, and any such separate firm for
the Issuer, its directors, its officers and such control persons of the Issuer
shall be designated in writing by the Issuer. The indemnifying person shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying person agrees to indemnify any indemnified party
from and against any loss or liability by reason of such settlement or judgment
to the extent of such indemnifying party's indemnification obligation hereunder.
No indemnifying person shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party,
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unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
If the indemnification provided for in the first and second
paragraphs of this Section 7 is unavailable to an indemnified party in respect
of any losses, claims, damages, liabilities, or expenses referred to therein
(other than by reason of the exceptions provided therein), then each
indemnifying person under such paragraphs, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages, liabilities,
or expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnified party on the one hand and the indemnifying
person(s) on the other in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities, or expenses or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the indemnifying
person(s) and the indemnified party, as well as any other relevant equitable
considerations. The relative fault of the Issuer on the one hand and any
Indemnified Persons 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 Issuer or by such Indemnified Persons and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if such indemnified parties were treated as one entity for such purpose)
or by any other method of allocation that 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 and expenses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses actually incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall an
Indemnified Person be required to contribute any amount in excess of the amount
by which proceeds received by such Indemnified Person from sales of Transfer
Restricted Securities or Exchange Notes exceeds the amount of any damages that
such Indemnified Person has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of
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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 indemnity and contribution agreements contained in this Section
7 will be in addition to any liability which the indemnifying parties may
otherwise have to the indemnified parties referred to above. The Indemnified
Persons' obligations to contribute pursuant to this Section 7 are several in
proportion to the respective principal amount of Securities sold by each of the
Indemnified Persons hereunder and not joint.
8. Rules 144 and 144A
The Issuer covenants that it will file the reports required to be
filed by it pursuant to the Securities Act and the Exchange Act and the rules
and regulations adopted by the SEC thereunder in a timely manner and, if at any
time the Issuer is not required to file such reports, it will, upon the
reasonable request of any Holder of Transfer Restricted Securities, make
available information required by Rule 144 and Rule 144A under the Securities
Act in order to permit sales pursuant to Rule 144 and Rule 144A. The Issuer
further covenants that it will take such further action as any Holder of
Transfer Restricted Securities may reasonably request, all to the extent
required from time to time to enable such Holder to sell Transfer Restricted
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 and Rule 144A, or (b) any similar
rule or regulation hereafter adopted by the SEC (it being expressly understood
that the foregoing shall not create any obligation on the part of the Issuer to
file periodic or other reports under the Exchange Act at any time that it is not
otherwise required to file such reports pursuant to the Exchange Act).
9. Underwritten Registrations
(a) If any of the Transfer Restricted Securities covered by any
Shelf Registration Statement are 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 Transfer Restricted Securities included in such
offering and shall be reasonably acceptable to the Issuer.
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No Holder of Transfer Restricted Securities 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 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.
(b) Each Holder of Transfer Restricted Securities agrees, if
requested (pursuant to a timely written notice) by the managing underwriters in
an underwritten offering or by a placement agent in a private offering of the
Issuer's debt securities, not to effect any private sale or distribution
(including a sale pursuant to Rule 144(k) or Rule 144A under the Securities Act,
but excluding non-public sales to any of its affiliates, officers, directors,
employees and controlling persons), of any of the Notes, except pursuant to an
Exchange Offer, during the period beginning 10 days prior to, and ending 90 days
after, the closing date of the underwritten or private offering, as applicable.
The foregoing provisions shall not apply to any Holder of Transfer
Restricted Securities if such Holder is prevented by applicable statute or
regulation from entering into any such agreement; provided, however, that if it
receives a written request as provided in the preceding paragraph, no such
Holder shall effect any disposition of Notes that would otherwise be restricted
by the provisions of the preceding pararaph without providing reasonable advance
written notice of such disposition to the Issuer, the managing underwriter or
the placement agent, as the case may be.
The Issuer agrees, without the written consent of the managing
underwriters in an underwritten offering of Transfer Restricted Securities
covered by a Registration Statement filed pursuant to Section 3 hereof, not to
effect any public or private sale or distribution of its respective debt
securities, including a sale pursuant to Regulation D or Rule 144A under the
Securities Act, during the period beginning 10 days prior to, and ending 90 days
after, the closing date of each underwritten offering made pursuant to such
Registration Statement (provided, however, that such period shall be extended by
the number of days from and including the date of the giving of any notice
pursuant to Section 5(c)(v) or (c)(vi) hereof to and including the date when
each seller of Transfer Restricted Securities covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 5(j) hereof).
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10. Miscellaneous
(a) No Inconsistent Agreements. The Issuer has not, as of the date
hereof, and the Issuer shall not, after the date of this Agreement, enter into
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders of Transfer Restricted Securities in this
Agreement or otherwise conflicts with the provisions hereof. The Issuer will not
enter into any agreement with respect to any of its securities which will grant
to any Person piggy-back registration rights with respect to a Registration
Statement.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions
hereof may not be given, unless the Issuer has obtained the written consent of
Holders of at least a majority of the then outstanding aggregate principal
amount of Transfer Restricted Securities. Notwithstanding the foregoing, a
waiver or consent to or departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose securities are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect, impair, limit or compromise the rights of other Holders may
be given by Holders of at least a majority in aggregate principal amount of the
Transfer Restricted Securities being sold by such Holders pursuant to such
Registration Statement; provided that the provisions of this sentence may not be
amended, modified or supplemented except in accordance with the provisions of
the immediately preceding sentence.
(c) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee),
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 Transfer Restricted Securities, at the most
current address given by the Trustee to the Issuer;
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(ii) if to the Issuer, Big 5 Corp., 0000 Xxxx Xx Xxxxxxx Xxxxxxxxx,
Xx Xxxxxxx, Xxxxxxxxxx 00000, Attention: President, with a copy to Xxxxxxx
Xxxxx & Partners, 00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxxxxx Xxxxxx Xxxxxx, and with a copy to
Irell & Xxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx, Esq.; and
(iii) if to any Initial Purchasers, c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Department, with a copy to Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxx X. Xxxxxxx, 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 mail, postage prepaid, if mailed; one business day
after being timely delivered to a nationally recognized next-day air courier, if
made by next-day air courier; and when receipt is acknowledged by the addressee,
if telecopied on a business day on such business day, if not on a business day,
on the first business day thereafter.
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.
(e) 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 Transfer Restricted Securities. The Issuer
agrees that the Holders of the Notes shall be third-party creditor beneficiaries
to the agreements made hereunder by the Initial Purchasers and the Issuer, and
each Holder shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights
hereunder.
(f) 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.
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(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOV ERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
(i) 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 reasonable 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 hereto 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.
(j) Entire Agreement. This Agreement, together with the Purchase
Agreement, is intended by the parties hereto as a final expression of their
agreement, and is 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 and therein. Any and all prior oral or written
agreements, representations, warranties, contracts, understandings,
correspondence, conversations and memoranda between the Initial Purchasers, on
the one hand, and the Issuer, 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 are merged
herein and replaced hereby.
(k) Notes Held by the Issuer or its Affiliates. Whenever the consent
or approval of Holders of a specified percentage of Transfer Restricted
Securities is required hereunder, Transfer Restricted Securities held by the
Issuer or its affiliates (as such term is defined in Rule 405 under the
Securities Act) (other than the Initial Purchasers or subsequent Holders of
Transfer Restricted Securities or Exchange Notes if such subsequent Holders are
deemed to be affiliates solely by reason of their holdings of such Transfer
Restricted Securities or Exchange Notes), shall not be
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counted in determining whether such consent or approval was given by the Holders
of such required percentage.
(l) Survival. This Agreement is intended to survive the consummation
of the transactions contemplated by the Purchase Agreement. The indemnification
and contribution obligations under section 7 of this Agreement shall survive the
termination of the Issuer's obligations under sections 2 and 3 of this
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
BIG 5 CORP.
By: /s/ XXXXXXX X. XXXX
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first
above written.
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON CORPORATION
By: XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: /s/ XXXXXX X. XXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
