EXHIBIT 4.03
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REGISTRATION RIGHTS AGREEMENT
Dated as of June 17, 1997
by and among
FALCON BUILDING PRODUCTS, INC.
XXXX & XXXXXX, INC.
MANSFIELD PLUMBING PRODUCTS, INC.
DEVILBISS AIR POWER COMPANY
SWC INDUSTRIES, INC.
and
EX-CELL MANUFACTURING COMPANY, INC.
and
XXXXX XXXXXX INC.
BT SECURITIES CORPORATION
CHASE SECURITIES INC.
and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
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This Registration Rights Agreement (this "AGREEMENT") is made and entered
into as of June 17, 1997, by and among Falcon Building Products, Inc., a
Delaware corporation (the "COMPANY"), Xxxx & Xxxxxx, Inc., Mansfield Plumbing
Products, Inc., DeVilbiss Air Power Company, SWC Industries, Inc. and Ex-Cell
Manufacturing Company, Inc. (each a "GUARANTOR" and, collectively, the
"GUARANTORS"), and Xxxxx Xxxxxx Inc., BT Securities Corporation, Chase
Securities Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as the
initial purchasers (each a "PURCHASER" and, collectively, the "PURCHASERS"),
each of whom has agreed, severally and not jointly, to purchase the Company's
9 1/2% Senior Subordinated Notes due 2007 (the "SERIES A SUBORDINATED NOTES")
and 10 1/2% Senior Subordinated Discount Notes due 2007 (the "SERIES A
SUBORDINATED DISCOUNT NOTES" and, together with the Subordinated Notes, the
"SERIES A SECURITIES") pursuant to and subject to the terms and conditions of
a certain Purchase Agreement, dated June 6, 1997 (the "PURCHASE AGREEMENT"),
by and among the Company, the Guarantors and the Purchasers. In order to
induce the Purchasers to purchase the Series A Securities, the Company and the
Guarantors have agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
obligations of the Purchasers set forth in Section 2 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
ACT: The Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
BROKER-DEALER TRANSFER RESTRICTED SECURITIES: Series B Securities that
are acquired by a Broker-Dealer in the Exchange Offer in exchange for Series A
Securities that such Broker-Dealer acquired for its own account as a result of
market making activities or other trading activities (other than Series A
Securities acquired directly from the Company or any of its affiliates).
BUSINESS DAY: Any day except a Saturday, Sunday or other day in the City
of New York, or in the city of the corporate trust office of either of the
Trustees, on which banks are authorized to close.
CLOSING DATE: The date of this Agreement.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: A Registered Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series B Securities to be issued in the Exchange Offer, (ii)
maintaining such Registration Statement continuously effective and the keeping
of the Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof, and (iii) the delivery by the Company
to the Registrar(s) under the Indentures of Series B Securities and the
Guarantees thereof by the Guarantors in the same aggregate principal amount as
the aggregate principal amount of Series A Securities that were tendered by
Holders thereof pursuant to the Exchange Offer.
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DAMAGES PAYMENT DATE: With respect to the Series A Securities, each
Interest Payment Date.
DISCOUNT NOTE INDENTURE: The Indenture, dated as of June 17, 1997, among
the Company, the Guarantors and Xxxxxx Trust and Savings Bank, as trustee (the
"DISCOUNT NOTE TRUSTEE"), pursuant to which the Senior Subordinated Discount
Notes and the Guarantees thereof are to be issued, as such Indenture is amended
or supplemented from time to time in accordance with the terms thereof.
EFFECTIVENESS TARGET DATE: As defined in Section 5.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
EXCHANGE OFFER: The registration by the Company under the Act of the
Series B Securities and the Guarantees thereof by the Guarantors pursuant to a
Registration Statement under which the Company and the Guarantors shall offer
the Holders of all outstanding Transfer Restricted Securities the opportunity to
exchange all such outstanding Transfer Restricted Securities held by such
Holders for Series B Securities in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities tendered in
such exchange offer by such Holders.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Purchasers propose to sell
the Series A Securities to certain "qualified institutional buyers," as such
term is defined in Rule 144A under the Act, and to certain institutional
"accredited investors," as such term is defined in Rule 501(a)(1), (2), (3) and
(7) of Regulation D under the Act ("ACCREDITED INSTITUTIONS").
GUARANTEE: The joint and several Guarantee by the Guarantors of the
obligations of the Company pursuant to the Securities.
HOLDERS: As defined in Section 2(b) hereof.
INDEMNIFIED HOLDER: As defined in Section 8(a) hereof.
INDENTURES: The Note Indenture and the Discount Note Indenture.
INTEREST PAYMENT DATE: As defined in the Indenture and the Securities.
MANAGEMENT AFFILIATE: Each of Xxxxxxx Xxxx, Xxx Xxxxx, Xxx Xxxxxxx,
Xxxxxxx Xxxxxxxx and Xxxxx Xxxx.
NASD: National Association of Securities Dealers, Inc.
NOTE INDENTURE: The Indenture, dated as of June 17, 1997, among the
Company, the Guarantors and Xxxxxx Trust and Savings Bank, as trustee (the "NOTE
TRUSTEE"), pursuant to which the Senior Subordinated Notes and the Guarantees
thereof are to be issued, as such Indenture is amended or supplemented from time
to time in accordance with the terms thereof.
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PARTICIPATING BROKER-DEALER: Any Broker-Dealer that (i) holds Series A
Securities that are Transfer-Restricted Securities and that were acquired for
its own account as a result of market-making activities or other trading
activities (other than Transfer Restricted Securities acquired directly from the
Company) that intends to participate in the Exchange Offer or (ii) holds Series
B Securities acquired in the Exchange Offer.
PERSON: An individual, partnership, corporation, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
PROSPECTUS: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
PURCHASER: As defined in the preamble hereto.
RECORD HOLDER: With respect to any Damages Payment Date relating to
Securities, each Person who is a Holder of Securities on the record date with
respect to the Interest Payment Date on which such Damages Payment Date shall
occur.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company
relating to (a) an offering of Series B Securities and the Guarantees thereof by
the Guarantors pursuant to an Exchange Offer or (b) the registration for resale
of Transfer Restricted Securities pursuant to the Shelf Registration Statement,
which is filed pursuant to the provisions of this Agreement, in each case,
including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and material
incorporated by reference therein.
SECURITIES: The Series A Securities and the Series B Securities.
SERIES B SENIOR SUBORDINATED NOTES: The Company's 9 1/2% Series B Senior
Subordinated Notes due 2007 to be issued pursuant to the Note Indenture in the
Exchange Offer.
SERIES B SENIOR SUBORDINATED DISCOUNT NOTES: The Company's 10 1/2% Series
B Senior Subordinated Discount Notes due 2007 to be issued pursuant to the
Discount Note Indenture in the Exchange Offer.
SERIES B SECURITIES: The Series B Senior Subordinated Notes and the
Series B Senior Subordinated Discount Notes.
SENIOR SUBORDINATED DISCOUNT NOTES: The Series A Senior Subordinated
Discount Notes and the Series B Senior Subordinated Discount Notes.
SENIOR SUBORDINATED NOTES: The Series A Senior Subordinated Notes and the
Series B Senior Subordinated Notes.
SHELF FILING DEADLINE: As defined in Section 4 hereof.
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SHELF REGISTRATION: The shelf registration filed by the Company pursuant
to Rule 415 under the Act pursuant to Section 4 hereof which provides for
resales of all Transfer Restricted Securities (other than Transfer Restricted
Securities held by Management Affiliates).
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each Security, including the Guarantees
thereof, until the earliest to occur of (a) the date on which such Security is
exchanged in the Exchange Offer and entitled to be resold to the public by the
Holder thereof without complying with the prospectus delivery requirements of
the Act, (b) the date on which such Security, including the Guarantees thereof,
has been effectively registered under the Act and disposed of in accordance with
a Shelf Registration Statement and (c) the date on which such Security is
distributed to the public pursuant to Rule 144 under the Act or by a
Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the
Exchange Offer Registration Statement (including delivery of the Prospectus
contained therein).
TRUSTEES: The Discount Note Trustee and the Note Trustee.
UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) TRANSFER RESTRICTED SECURITIES. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) HOLDERS OF TRANSFER RESTRICTED SECURITIES. A Person is deemed to be a
holder of Transfer Restricted Securities (each, a "HOLDER") whenever such Person
owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under applicable
law or Commission policy (after the procedures set forth in Section 6(a) below
have been complied with), the Company shall (i) cause to be filed with the
Commission as soon as practicable after the Closing Date, but in no event later
than 90 days after the Closing Date, a Registration Statement under the Act
relating to the Series B Securities and the Exchange Offer, (ii) use its best
efforts to cause such Registration Statement to become effective at the earliest
possible time, but in no event later than 180 days after the Closing Date, (iii)
in connection with the foregoing, (A) file all pre-effective amendments to such
Registration Statement as may be necessary in order to cause such Registration
Statement to become effective, (B) file, if applicable, a post-effective
amendment to such Registration Statement pursuant to Rule 430A under the Act and
(C) cause all necessary filings in connection with the registration and
qualification of the Series B Securities to be made under the Blue Sky laws of
such jurisdictions as are necessary to permit Consummation of the Exchange
Offer, and (iv) upon the effectiveness of such Registration Statement, commence
the Exchange Offer. The Exchange Offer shall be on the
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appropriate form permitting registration of the Series B Securities,
including the Guarantees thereof, to be offered in exchange for the Transfer
Restricted Securities and to permit resales of Securities held by
Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall cause the Exchange Offer
Registration Statement to be effective continuously and shall keep the
Exchange Offer open for a period of not less than the minimum period required
under applicable federal and state securities laws to Consummate the Exchange
Offer; PROVIDED, HOWEVER, that in no event shall such period be less than 20
Business Days. The Company and the Guarantors shall cause the Exchange Offer
to comply with all applicable federal and state securities laws. No
securities other than the Securities, including the Guarantees thereof, shall
be included in the Exchange Offer Registration Statement. The Company and
the Guarantors shall use their best efforts to cause the Exchange Offer to be
Consummated on the earliest practicable date after the Exchange Offer
Registration Statement has become effective, but in no event later than 30
Business Days thereafter.
(c) The Company and the Guarantors shall indicate in a "Plan of
Distribution" section contained in the Prospectus contained in the Exchange
Offer Registration Statement that any Participating Broker-Dealer may exchange
Series A Securities held by it pursuant to the Exchange Offer; however, such
Participating Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with any resales of the Series B
Securities received by such Participating Broker-Dealer in the Exchange Offer,
which prospectus delivery requirement may be satisfied by the delivery by such
Participating Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section shall also contain
all other information with respect to such resales by Participating
Broker-Dealers that the Commission may require in order to permit such resales
pursuant thereto, but such "Plan of Distribution" shall not name any such
Participating Broker-Dealer or disclose the amount of Securities held by any
such Participating Broker-Dealer except to the extent required by the Commission
as a result of a change in policy after the date of this Agreement.
The Company and the Guarantors shall use their best efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 6(c) below to the extent
necessary to ensure that it is available for resales of Securities, including
the Guarantees thereof, acquired by Broker-Dealers for their own accounts as a
result of market-making activities or other trading activities, and to ensure
that it conforms with the requirements of this Agreement, the Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period of one year from the date on which the Exchange Offer
Registration Statement is declared effective.
The Company and the Guarantors shall provide sufficient copies of the
latest version of such Prospectus to Broker-Dealers promptly upon request at any
time during such one-year period in order to facilitate such resales.
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SECTION 4. SHELF REGISTRATION
(a) SHELF REGISTRATION. If (i) the Company and the Guarantors are not
required to file an Exchange Offer Registration Statement or to consummate the
Exchange Offer because the Exchange Offer is not permitted by applicable law or
Commission policy (after the procedures set forth in Section 6(a) below have
been complied with) or (ii) if any Holder of Transfer Restricted Securities
(other than a Management Affiliate of the Company) shall notify the Company
within 20 Business Days of the Consummation of the Exchange Offer (A) that such
Holder is prohibited by applicable law or Commission policy from participating
in the Exchange Offer, or (B) that such Holder may not resell the Series B
Securities acquired by it in the Exchange Offer to the public without delivering
a prospectus and that the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such
Holder, or (C) that such Holder is a Broker-Dealer and holds Series A Securities
acquired directly from the Company or one of its affiliates, then the Company
and the Guarantors shall:
(x) cause to be filed a shelf registration statement pursuant to
Rule 415 under the Act, which may be an amendment to the Exchange
Offer Registration Statement (in either event, the "SHELF
REGISTRATION STATEMENT") on or prior to the earliest to occur of (1)
the 90th day after the date on which the Company determines that it is
not required to file the Exchange Offer Registration Statement, (2) the
90th day after the date on which the Company receives notice from a Holder
of Transfer Restricted Securities as contemplated by clause (ii) above,
and (3) the 90th day after the Closing Date (such earliest date being the
"SHELF FILING DEADLINE"), which Shelf Registration Statement shall provide
for resales of all Transfer Restricted Securities (other than Transfer
Restricted Securities held by Management Affiliates) the Holders of which
shall have provided the information required pursuant to Section 4(b)
hereof; and
(y) use their best efforts to cause such Shelf Registration
Statement to be declared effective by the Commission on or before
the 45th day after the Shelf Filing Deadline.
The Company and the Guarantors shall use their best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and (c) hereof to the extent
necessary to ensure that it is available for resales of Securities, including
the Guarantees thereof, by the Holders of Transfer Restricted Securities
entitled to the benefit of this Section 4(a), and to ensure that it conforms
with the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of at
least two years following the Closing Date.
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH THE
SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 Business Days after receipt of a request
therefor, such information as the Company may reasonably request, including, but
not limited to, information specified by Regulation S-K or otherwise required by
the Commission (such information, "REQUIRED INFORMATION") for use in connection
with any Shelf Registration Statement or Prospectus or preliminary Prospectus
included therein. No Holder of Transfer Restricted Securities shall be entitled
to liquidated damages pursuant to Section 5 hereof unless and until such Holder
shall have provided all Required Information and used its best efforts to
provide all other reasonably requested information. Each Holder as to which any
Shelf Registration Statement is being effected agrees to furnish promptly to the
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Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially
misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by this Agreement is
not filed with the Commission on or prior to the date specified for such filing
in this Agreement, (ii) any of such Registration Statements has not been
declared effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "EFFECTIVENESS TARGET DATE"), (iii) the
Exchange Offer has not been Consummated within 30 Business Days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (iv) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded, as soon as reasonably
practicable, but in no case more than 15 Business Days, by a post-effective
amendment to such Registration Statement that cures such failure and that is
itself declared effective during such period (each such event referred to in
clauses (i) through (iv), a "REGISTRATION DEFAULT"), the Company and the
Guarantors hereby jointly and severally agree to pay liquidated damages to each
Holder of Transfer Restricted Securities with respect to the first 90-day period
immediately following the occurrence of such Registration Default, in an amount
equal to $.05 per week per $1,000 principal amount of Transfer Restricted
Securities held by such Holder for each week or portion thereof that the
Registration Default continues. The amount of the liquidated damages shall
increase by an additional $.05 per week per $1,000 in principal amount of
Transfer Restricted Securities with respect to each subsequent 90-day period
until all Registration Defaults have been cured, up to a maximum amount of
liquidated damages of $.20 per week per $1,000 principal amount of Transfer
Restricted Securities. All accrued liquidated damages shall be paid to Record
Holders by the Company by wire transfer of immediately available funds or by
federal funds check on each Damages Payment Date, as provided in the Indentures.
Following the cure of all Registration Defaults relating to any particular
Transfer Restricted Securities, the accrual of liquidated damages with respect
to such Transfer Restricted Securities will cease. If more than one
Registration Default has occurred, is continuing, and is applicable to the same
Transfer Restricted Security, at any time, the Holder of such Transfer
Restricted Security shall only be entitled to receive liquidated damages with
respect to one such Registration Default.
All obligations of the Company and the Guarantors set forth in the
preceding paragraph that are outstanding with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such obligations with respect to such
Security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection with the
Exchange Offer, the Company and the Guarantors shall comply with all of the
provisions of Section 6(c) below, shall use their best efforts to effect such
exchange to permit the sale of Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof, and
shall comply with all of the following provisions:
(i) If in the opinion of counsel to the Company there is a material
question as to whether the Exchange Offer is permitted by applicable
federal law, the Company and the Guarantors hereby agree to seek a
no-action letter or other favorable decision from the
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Commission allowing the Company and the Guarantors to Consummate an
Exchange Offer for such Series A Securities. The Company and the
Guarantors hereby agree to pursue the issuance of such a decision to the
Commission staff level but shall not be required to take commercially
unreasonable action to effect a change of Commission policy. The Company
and the Guarantors hereby agree, however, to (A) participate in telephonic
conferences with the Commission, (B) deliver to the Commission staff an
analysis prepared by counsel to the Company setting forth the legal bases,
if any, upon which such counsel has concluded that such an Exchange Offer
should be permitted and (C) diligently pursue a resolution (which need not
be favorable) by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company,
prior to the Consummation thereof, a written representation to the Company
(which may be contained in the letter of transmittal contemplated by the
Exchange Offer Registration Statement) to the effect that (A) it is not an
affiliate of the Company or the Guarantors, (B) it is not engaged in, and
does not intend to engage in, and has no arrangement or understanding with
any person to participate in, a distribution of the Series B Securities to
be issued in the Exchange Offer and (C) it is acquiring the Series B
Securities in its ordinary course of business. In addition, all such
Holders of Transfer Restricted Securities shall otherwise cooperate in the
Company's preparations for the Exchange Offer. Each Holder hereby
acknowledges and agrees that any Broker-Dealer and any such Holder using
the Exchange Offer to participate in a distribution of the securities to
be acquired in the Exchange Offer (1) could not under Commission policy as
in effect on the date of this Agreement rely on the position of the
Commission enunciated in XXXXXX XXXXXXX AND CO., INC. (available June 5,
1991) and EXXON CAPITAL HOLDINGS CORPORATION (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated July
2, 1993, and similar no-action letters (including any no-action letter
obtained pursuant to clause (i) above), and (2) must comply with the
registration and prospectus delivery requirements of the Act in connection
with a secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration statement
containing the selling security holder information required by Item 507 or
508, as applicable, of Regulation S-K if the resales are of Series B
Securities obtained by such Holder in exchange for Series A Securities
acquired by such Holder directly from the Company.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company and the Guarantors shall provide a supplemental
letter to the Commission (A) stating that the Company and the Guarantors
are registering the Exchange Offer in reliance on the position of the
Commission enunciated in EXXON CAPITAL HOLDINGS CORPORATION (available May
13, 1988), XXXXXX XXXXXXX AND CO., INC. (available June 5, 1991) and, if
applicable, any no-action letter obtained pursuant to clause (i) above and
(B) including a representation that neither the Company nor any of the
Guarantors have entered into any arrangement or understanding with any
Person to distribute the Series B Securities to be received in the
Exchange Offer and that, to the best of the Company's and the Guarantors'
information and belief, each Holder participating in the Exchange Offer is
acquiring the Series B Securities in its ordinary course of business and
has no arrangement or understanding with any Person to participate in the
distribution of the Series B Securities received in the Exchange Offer.
(b) SHELF REGISTRATION STATEMENT. In connection with the Shelf
Registration Statement, if any, the Company and the Guarantors shall comply with
all the provisions of Section 6(c) below and shall use their best efforts to
effect such registration to permit the sale of the Transfer Restricted
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Securities being sold in accordance with the intended method or methods of
distribution thereof, as may be indicated in the information furnished to the
Company pursuant to Section 4(b) hereof and pursuant thereto the Company and the
Guarantors will as expeditiously as possible prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof, within the time periods and otherwise in
accordance with the provisions hereof.
(c) GENERAL PROVISIONS. In connection with any Registration Statement and
any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, unless otherwise
indicated herein, any Registration Statement and the related
Prospectus required to permit resales of Securities by Broker-Dealers), the
Company and the Guarantors shall:
(i) use their best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements
(including, if required by the Act or any regulation thereunder, financial
statements of any Guarantor) for the period specified in Section 3 or 4 of
this Agreement, as applicable; upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained therein
(A) to contain a material misstatement or omission or (B) not to be
effective and usable for resale of Transfer Restricted Securities during
the period required by this Agreement, the Company and the Guarantors
shall file promptly an appropriate amendment to such Registration
Statement, in the case of clause (A), correcting any such misstatement or
omission, and, in the case of either clause (A) or (B), use their best
efforts to cause such amendment to be declared effective and such
Registration Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the applicable
period set forth in Section 3 or 4 hereof, as applicable, or such shorter
period as will terminate when all Transfer Restricted Securities covered
by such Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Act, and to comply fully with
the applicable provisions of Rules 424 and 430A under the Act in a timely
manner; and comply with the provisions of the Act with respect to the
disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise the Participating Broker-Dealers and other
underwriter(s), if any, and selling Holders promptly and, if requested by
such Persons, to confirm such advice in writing, (A) when the Prospectus
or any Prospectus supplement or post-effective amendment has been filed,
and, with respect to any Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any request
by the Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the Act
or of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering or sale
in any jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the happening of
any event that makes any statement of a material fact
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made in the Registration Statement, the Prospectus, any amendment or
supplement thereto, or any document incorporated by reference therein
untrue, or that requires the making of any additions to or changes in the
Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement, or
any state securities commission or other regulatory authority shall issue
an order suspending the qualification or exemption from qualification of
the Transfer Restricted Securities under state securities or Blue Sky laws,
the Company and the Guarantors shall use their best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(iv) (A) in the case of an Exchange Offer, furnish counsel for
Participating Broker-Dealers, if any, that have given at least five
Business Days' prior written or oral notification to the Company that it
will participate in the Exchange Offer and (B) in the case of a Shelf
Registration, furnish counsel for the Holders of Transfer Restricted
Securities, before filing with the Commission, copies of any Registration
Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus (including
all documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review of
such Holders and Participating Broker-Dealers, if any, for a period of at
least five Business Days, and the Company and the Guarantors will not file
any such Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus (including all
such documents incorporated by reference) to which a selling Holder of
Transfer Restricted Securities covered by such Registration Statement (in
the case of a Shelf Registration Statement) or the Participating
Broker-Dealers (in the case of an Exchange Offer Registration Statement),
shall reasonably object within five Business Days after the receipt
thereof. A Participating Broker-Dealer or selling 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 a material misstatement or omission;
(v) (A) in the case of an Exchange Offer, furnish counsel for
Participating Broker-Dealers, if any, that have given at least five
Business Days' prior written or oral notification to the Company that it
will participate in the Exchange Offer and (B) in the case of a Shelf
Registration, furnish counsel for the Holders of Transfer Restricted
Securities, prior to the filing of any document that is to be incorporated
by reference into a Registration Statement or Prospectus included therein,
copies of such document, and, in each case, make the Company's
representatives (and representatives of the Guarantors) available for
discussion of such document and other customary due diligence matters, and
include such information in such document prior to the filing thereof as
such Holders, any Participating Broker Dealers or their respective
counsel, reasonably may request;
(vi) make available at reasonable times for inspection by (A) in the
case of an Exchange Offer, Participating Broker-Dealers, if any, and any
attorney or accountant retained by such Participating Broker-Dealer and
(B) in the case of a Shelf Registration, furnish Holders of Transfer
Restricted Securities, and any attorney or accountant retained by such
Holders, all material financial and other records, pertinent corporate
documents and properties of the Company and the Guarantors and cause the
Company's and the Guarantors' officers, directors and employees to supply
all material information reasonably requested by any such Participating
Broker-Dealer, Holder, attorney or accountant in connection with such
Registration Statement subsequent to the filing thereof and prior to its
effectiveness, in each case, subject to executing a confidentiality
undertaking in customary form and with respect to confidential information
and/or proprietary information of the Company and the Guarantors;
10
(vii) (A) in the case of an Exchange Offer, if requested by any
Participating Broker-Dealers, if any, or their counsel, or (B) in the case
of an Shelf Registration, if requested by any Holder of Transfer
Restricted Securities or their counsel, promptly incorporate in any
Registration Statement or Prospectus included therein, pursuant to a
supplement or post-effective amendment if necessary, such material
information as such Participating Broker-Dealers, Holders or their
respective counsel may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted Securities being
sold to such Participating Broker-Dealers, the purchase price being paid
therefor and any other terms of the offering of the Transfer Restricted
Securities to be sold in such offering; and make all required filings of
such Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish (A) in the case of an Exchange Offer, to any
Participating Broker-Dealer, and any other underwriter(s), if any, if
such Participating Broker-Dealer or underwriter(s) have given
prior written or oral notification to the Company that they will
participate in the Exchange Offer, or (B) in the case of an Shelf
Registration, to each selling Holder, without charge, at least one copy of
the Registration Statement, as first filed with the Commission, and of
each amendment thereto, including all documents incorporated by reference
therein and all exhibits (without documents incorporated therein by
reference or exhibits thereto, unless requested);
(ix) deliver to each selling Holder, each Participating
Broker-Dealer and any other underwriter(s), if any, without charge, as
many copies of the Prospectus (including each preliminary prospectus) and
any amendment or supplement thereto as such Persons reasonably may
request; the Company and the Guarantors hereby consent to the use (in
accordance with law) of the Prospectus and any amendment or supplement
thereto by each of the selling Holders, each of the Participating
Broker-Dealers, and each of the other underwriter(s), if any, in
connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto;
(x) in the case of a Shelf Registration and, to the extent that
the Company is required to maintain an effective Exchange Offer
Registration Statement for any Participating Broker-Dealer, enter into
such agreements (including, subject to Section 11 hereof, an underwriting
agreement), and make such representations and warranties, and take all
such other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities pursuant
to any Registration Statement contemplated by this Agreement, all to such
extent as may be reasonably requested by any Holder of Transfer Restricted
Securities or Participating Broker-Dealer in connection with any sale or
resale pursuant to any Registration Statement contemplated by this
Agreement; PROVIDED, HOWEVER, that the Company shall not be required to
enter into any underwriting agreement which is on terms less favorable to
the Company than the Purchase Agreement; and whether or not an
underwriting agreement is entered into and whether or not the registration
is an Underwritten Registration, the Company and the Guarantors shall:
(A) furnish (or in the case of paragraphs (2) and (3), use its
best efforts to furnish) to each Selling Holder of Transfer Restricted
Securities, upon the effectiveness of the Shelf Registration
Statement, and to each Participating Broker-Dealer upon five Business
Days' prior written or oral notice to the Company that it is
participating in the Exchange Offer, but in no case prior to the
Consummation of the Exchange Offer:
11
(1) a certificate, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, signed by (y) the
Chief Executive Office, President or any Vice President and (z) a
principal financial or accounting officer of the Company and the
Guarantors, confirming, as of the date thereof, the matters set
forth in paragraphs (l) and (m) of Section 7 of the Purchase
Agreement and such other matters as such parties may reasonably
request;
(2) an opinion, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel for the
Company and the Guarantors, covering the matters set forth in
paragraphs (d) and (e) of Section 7 of the Purchase Agreement and
such other matter as such parties may reasonably request, and in
any event including a statement to the effect that such counsel
has participated in conferences with officers and other
representatives of the Company and the Guarantors,
representatives of the independent public accountants for the
Company and the Guarantors, the Purchasers' representatives and
the Purchasers' counsel in connection with the preparation of
such Registration Statement and the related Prospectus and have
considered the matters required to be stated therein and the
statements contained therein, although such counsel has not
independently verified the accuracy, completeness or fairness of
such statements; and that such counsel advises that, on the basis
of the foregoing (relying as to materiality to a large extent
upon facts provided to such counsel by officers and other
representatives of the Company and without independent check or
verification), no facts came to such counsel's attention that
caused such counsel to believe that the applicable Registration
Statement, at the time such Registration Statement or any
post-effective amendment thereto became effective, and, in the
case of the Exchange Offer Registration Statement, as of the date
of Consummation, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or
that the Prospectus contained in such Registration Statement as
of its date and, in the case of the opinion dated the date of
Consummation of the Exchange Offer, as of the date of
Consummation, contained an untrue statement of a material fact
or omitted to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which
they were made, not misleading. Without limiting the foregoing,
such counsel may state further that such counsel assumes no
responsibility for, and has not independently verified, the
accuracy, completeness or fairness of the financial statements,
notes and schedules and other financial data included in any
Registration Statement contemplated by this Agreement or the
related Prospectus; and
(3) a customary comfort letter, dated as of the date of
Consummation of the Exchange Offer or the date of effectiveness
of the Shelf Registration Statement, as the case may be, from the
Company's independent accountants, in the customary form and
covering matters of the type customarily covered in comfort
letters by underwriters in connection with primary underwritten
offerings, and affirming the matters set forth in the comfort
letters delivered pursuant to Section 7(g) of the Purchase
Agreement, without exception;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
12
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company
and the Guarantors pursuant to this clause (x), if any.
If at any time during, in the case of an Exchange Offer, the one-year
period contemplated in the final two paragraphs of Section 3(c) hereof,
or, in the case of a Shelf Registration, the two-year period contemplated
in the final sentence of Section 4(a) hereof, the representations and
warranties of the Company and the Guarantors contemplated in clause (A)(1)
above cease to be true and correct, the Company or the Guarantors shall so
advise the Participating Broker-Dealers, if any, and each selling Holder
promptly and, if requested by such Persons, shall confirm such advice in
writing;
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, Participating Broker
Dealers and other underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders, Participating Broker-Dealers or
other underwriter(s) may request and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of
the Transfer Restricted Securities covered by the Shelf Registration
Statement; PROVIDED, HOWEVER, that neither the Company nor the Guarantors
shall be required to register or qualify as a foreign corporation where it
is not now so qualified or to take any action that would subject it to the
service of process in suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any jurisdiction
where it is not now so subject;
(xii) issue, upon the request of any Holder of Series A
Securities covered by the Shelf Registration Statement, Series B
Securities, having an aggregate principal amount equal to the aggregate
principal amount of Series A Securities surrendered to the Company by such
Holder in exchange therefor or being sold by such Holder; such Series B
Securities to be registered in the name of such Holder or in the name of
the purchaser(s) of such Securities, as the case may be; in return, the
Series A Securities held by such Holder shall be surrendered to the
Company for cancellation;
(xiii) cooperate with the selling Holders, Participating
Broker-Dealers and other underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and enable
such Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders, Participating Broker-Dealers or
other underwriter(s), if any, may request at least two Business Days prior
to any sale of Transfer Restricted Securities made by such person;
(xiv) use their reasonable best efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof or
the underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xi)
above and use their reasonable best efforts to cause such Registration
Statement to become effective and approved by such governmental agencies
or authorities as may be necessary to enable the Holders selling Transfer
Restricted Securities to consummate the disposition of such Transfer
Restricted Securities;
13
(xv) if any fact or event contemplated by clause (c)(iii)(D)
above shall exist or have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make
the statements therein not misleading;
(xvi) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration Statement
and provide the Trustees under the Indentures with certificates for the
Transfer Restricted Securities which are in a form eligible for deposit
with the Depositary Trust Company;
(xvii) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by
any Participating Broker-Dealer or other underwriter (including any
"qualified independent underwriter") that is required to be retained in
accordance with the rules and regulations of the NASD;
(xviii) otherwise use their best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to their security holders, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158 under
the Act (which need not be audited) for the twelve-month period (A)
commencing at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or best efforts Underwritten
Offering or (B) if not sold to underwriters in such an offering, beginning
with the first month of the Company's first fiscal quarter commencing
after the effective date of the Registration Statement;
(xix) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement required
by this Agreement, and, in connection therewith, cooperate with the
Trustees and the Holders of Securities to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use their best
efforts to cause the Trustees to execute, all documents that may be
required to effect such changes and all other forms and documents required
to be filed with the Commission to enable such Indenture to be so
qualified in a timely manner;
(xx) cause all Transfer Restricted Securities covered by the
Registration Statement to be listed on each securities exchange on which
similar securities issued by the Company and the Guarantors are then
listed if requested by the Holders of a majority in aggregate principal
amount of Series A Securities or the managing underwriter(s), if any; and
(xxi) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of Section
13 and Section 15(d) of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xv) hereof,
or until it is advised in writing (the "ADVICE") by the Company that the use of
the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus. If
so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all
14
copies, other than permanent file copies then in such Holder's possession, of
the Prospectus covering such Transfer Restricted Securities that was current
at the time of receipt of such notice. In the event the Company shall give
any such notice, the time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or 4 hereof, as applicable,
shall be extended by the number of days during the period from and including
the date of the giving of such notice pursuant to Section 6(c)(iii)(D) hereof
to and including the date when each selling Holder covered by such
Registration Statement shall have received the copies of the supplemented or
amended Prospectus contemplated by Section 6(c)(xv) hereof or shall have
received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's or any Guarantor's
performance of or compliance with this Agreement will be borne by the Company
and the Guarantors, regardless of whether a Registration Statement becomes
effective, including, without limitation: (i) all registration and filing fees
and expenses (including filings made by any Purchaser or Holder with the NASD
(and, if applicable, the fees and expenses of any "qualified independent
underwriter" and its counsel that may be required by the rules and regulations
of the NASD)); (ii) all fees and expenses of compliance with federal securities
and state Blue Sky or securities laws; (iii) all expenses of printing (including
printing certificates for the Series B Securities to be issued in the Exchange
Offer and printing of Prospectuses), messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the Company, the
Guarantors and, subject to Section 7(b) below, the Holders of Transfer
Restricted Securities; and (v) all fees and disbursements of independent
certified public accountants of the Company and the Guarantors (including the
expenses of any special audit and comfort letters required by or incident to
such performance).
The Company and the Guarantors will, in any event, bear their
respective internal expenses (including, without limitation, all salaries and
expenses of their respective officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and
expenses of any Person, including special experts, retained by the Company
and the Guarantors.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company and the Guarantors
will reimburse the Purchasers and the Holders of Transfer Restricted Securities
being tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Xxxxxx & Xxxxxxx or such other counsel as may be chosen by the Holders of a
majority in principal amount of the Transfer Restricted Securities for whose
benefit such Registration Statement is being prepared.
SECTION 8. INDEMNIFICATION AND CONTRIBUTION
(a) The Company and the Guarantors, jointly and severally, agree to
indemnify and hold harmless each Holder and each person, if any, who controls a
Holder within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement, any Preliminary
Prospectus or the Prospectus or in any amendment or supplement thereto arising
out of or based upon any omission or alleged omission to state therein a
material fact required
15
to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information relating to
the Holders furnished in writing to the Company by or on behalf of the
Holders expressly for use in connection therewith. The foregoing indemnity
agreement shall be in addition to any liability which the Company may
otherwise have.
(b) If any action, suit or proceeding shall be brought against the
Holders or any person controlling the Holders in respect of which indemnity
may be sought against the Company or any Guarantor, the Holders or such
controlling person shall promptly notify the parties against whom
indemnification is being sought (the "INDEMNIFYING PARTIES"), and such
indemnifying parties shall assume the defense thereof, including the
employment of counsel and payment of all fees and expenses. The Holders or
any such controlling person shall have the right to employ separate counsel
in any such action, suit or proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the Holders or such controlling person unless (i) the indemnifying parties
have agreed in writing to pay such fees and expenses, (ii) the indemnifying
parties have failed to assume the defense and employ counsel, or (iii) the
named parties to any such action, suit or proceeding (including any impleaded
parties) include both the Holders or such controlling person and the
indemnifying parties and the Holders or such controlling person shall have
been advised by its counsel that representation of such indemnified party and
any 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
party shall not have the right to assume the defense of such action, suit or
proceeding on behalf of the Holders or such controlling person). It is
understood, however, that the indemnifying parties shall, in connection with
any one such action, suit or proceeding or separate but substantially similar
or related actions, suits or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of only one separate firm of attorneys (in
addition to any local counsel) at any time for the Holders and controlling
persons not having actual or potential differing interests with the Holders
or among themselves, which firm shall be designated in writing by a majority
of the Holders, and that all such fees and expenses shall be reimbursed on a
monthly basis to the extent provided in paragraph (a) hereof. The
indemnifying parties shall not be liable for any settlement of any such
action, suit or proceeding effected without their written consent, but if
settled with such written consent, or if there be a final judgment for the
plaintiff in any such action, suit or proceeding, the indemnifying parties
agree to indemnify and hold harmless the Holders, to the extent provided in
paragraph (a), and any such controlling person from and against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.
(c) Each Holder, severally and not jointly, agrees to indemnify and
hold harmless the Company and the Guarantors, and their respective directors and
officers, and any person who controls the Company or any Guarantor within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the indemnity from the Company and the Guarantors to the
Holders set forth in paragraph (a) hereof, but only with respect to information
relating to the Holders furnished in writing by or on behalf of the Holders
expressly for use in any Registration Statement, any Preliminary Prospectus or
the Prospectus or in any amendment or supplement thereto. If any action, suit
or proceeding shall be brought against the Company or any Guarantor, any of
their respective directors or officers, or any such controlling person based on
any Registration Statement, any Preliminary Prospectus or the Prospectus or in
any amendment or supplement thereto, and in respect of which indemnity may be
sought against the Holders pursuant to this paragraph (c), the Holders shall
have the rights and duties given to the Company and the Guarantors by paragraph
(b)
16
above (except that if the Company and the Guarantors shall have assumed the
defense thereof the Holders shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the Holders' expense), and the Company
and the Guarantors, their respective directors and officers, and any such
controlling person shall have the rights and duties given to the Holders by
paragraph (b) above. The foregoing indemnity agreement shall be in addition to
any liability which the Holders may otherwise have.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Holders on the other hand from the offering of
the Series B Securities, 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 Company on the one hand and the Holders on the other
in connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Holders on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total proceeds received by such
Holder upon its sale of Transfer Restricted Securities which otherwise would
give rise to the indemnification obligation. The relative fault of the Company
on the one hand and the Holders on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or by the Holders
on the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Company, the Guarantors and the Holders agree that it would
not be just and equitable if contribution pursuant to this Section 8 were
determined by a pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in paragraph
(d) above.
The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities and expenses referred to in
paragraph (d) above shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating any claim or defending any
such action, suit or proceeding. Notwithstanding the provisions of this
Section 8, no Holder shall be required to contribute any amount in excess of
the amount by which the total proceeds received by such Holder with respect
to the sale of its Securities, giving rise to its obligations hereunder,
exceeds the sum of (A) the amount paid by such Holders for such Securities,
plus (B) the amount of any damages which such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 8 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company and the Guarantors set forth in
this Agreement shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of the Holders or any
17
person controlling the Holders, the Company, the Guarantors, their respective
directors or officers or any person controlling the Company or any Guarantor,
(ii) acceptance of any Securities in the Exchange Offer or otherwise, and
(iii) any termination of this Agreement. A successor to a Holder or any
person controlling a Holder, or to the Company, the Guarantors, their
respective directors or officers or any person controlling the Company or any
Guarantor, shall be entitled to the benefits of the indemnity, contribution
and reimbursement agreements contained in this Section 8.
(g) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or 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, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
SECTION 9. RULE 144A
The Company and the Guarantors hereby agree with each Holder, for so
long as any Transfer Restricted Securities remain outstanding, to make available
to any Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected, subject to the consent of the Company,
which consent shall not be unreasonably withheld, by the Holders of a majority
in aggregate principal amount of the Transfer Restricted Securities included in
such offering.
SECTION 12. MISCELLANEOUS
(a) REMEDIES. The Company and the Guarantors agree that monetary
damages (including the liquidated damages contemplated hereby) would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agree to waive the defense in any action
for specific performance that a remedy at law would be adequate.
18
(b) NO INCONSISTENT AGREEMENTS. The Company and the Guarantors will
not on or after the date of this Agreement enter into any agreement with respect
to their respective securities that is inconsistent with the rights granted to
the Holders in this Agreement or otherwise conflicts with the provisions hereof.
Neither the Company nor any Guarantor has previously entered into any agreement
granting any registration rights with respect to their respective securities to
any Person. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's or the Guarantor's securities under any agreement in effect on the
date hereof.
(c) ADJUSTMENTS AFFECTING THE SECURITIES. The Company and the
Guarantors will not take any action, or permit any change to occur, with respect
to the Securities or the Guarantees that would materially and adversely affect
the ability of the Holders to Consummate any Exchange Offer.
(d) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the Exchange
Offer (or registered in a Shelf Registration) and that does not affect directly
or indirectly the rights of other Holders whose securities are not being
tendered pursuant to such Exchange Offer (or registered in such Shelf
Registration) may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities being tendered or registered.
(e) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company or any Guarantor:
Falcon Building Products, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxx Xxxxx
With a copy to:
Xxxxxx, Xxxx & Xxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
19
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the applicable Trustee
at the address specified in the applicable Indenture.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; PROVIDED,
HOWEVER, that this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such successor
or assign acquired Transfer Restricted Securities from such Holder.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) ENTIRE AGREEMENT. This Agreement together with the other
Operative Documents (as defined in the Purchase Agreement) is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company and the
Guarantors with respect to the Transfer Restricted Securities. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FALCON BUILDING PRODUCTS, INC.
By: /s/ Xxx X. Xxxxx
--------------------------------
Name:
Title:
XXXX & XXXXXX, INC.
By: /s/ Xxx X. Xxxxx
--------------------------------
Name:
Title:
MANSFIELD PLUMBING PRODUCTS, INC.
By: /s/ Xxx X. Xxxxx
--------------------------------
Name:
Title:
DEVILBISS AIR POWER COMPANY
By: /s/ Xxx X. Xxxxx
--------------------------------
Name:
Title:
SWC INDUSTRIES, INC.
By: /s/ Xxx X. Xxxxx
--------------------------------
Name:
Title:
EX-CELL MANUFACTURING COMPANY, INC.
By: /s/ Xxx X. Xxxxx
--------------------------------
Name:
Title:
21
XXXXX XXXXXX INC.
BT SECURITIES CORPORATION
CHASE SECURITIES INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: Xxxxx Xxxxxx Inc.
By: /s/ Xxxxxxx Xxxxx
--------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
22
