Execution Copy
REGISTRATION RIGHTS AGREEMENT (this
"Agreement"), dated as of March 5, 1997,
between FIRST BRANDS CORPORATION, a Delaware
corporation (the "Company"), and BEAR,
XXXXXXX & CO. INC., TD SECURITIES (USA) INC.,
CREDIT LYONNAIS SECURITIES (USA) INC. and
FIRST UNION CAPITAL MARKETS CORP. (the
"Initial Purchasers").
This Agreement is being entered into in connection with the
Purchase Agreement, dated the date hereof, between the Company and the Initial
Purchasers (the "Purchase Agreement"), which provides for the sale by the
Company to the Initial Purchasers of $150,000,000 aggregate principal amount of
the Company's 7.25% Senior Notes Due 2007 (the "Notes"). In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the Company has agreed
to provide the registration rights set forth in this Agreement for the benefit
of the Initial Purchasers and its direct and indirect transferees. The execution
and delivery of this Agreement is a condition to the obligation of the Initial
Purchasers to purchase the Notes under the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the
following terms shall have the following meanings:
"Additional Interest" shall have the meaning set
forth in Section 4(a) hereof.
"Advice" shall have the meaning set forth in the
last paragraph of Section 5 hereof.
"Agreement" shall have the meaning set forth in
the first introductory paragraph hereto.
"Applicable Period" shall have the meaning set
forth in Section 2(b) hereof.
"Closing Date" shall mean the Closing Date set
forth in the Purchase Agreement.
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"Company" shall have the meaning set forth in the
first introductory paragraph hereto.
"Effectiveness Date" shall mean, with respect to any
Registration Statement, the 75th day after the Filing Date with respect
thereto.
"Effectiveness Period" shall have the meaning set
forth in Section 3(a) hereof.
"Event Date" shall have the meaning set forth in
Section 4(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the SEC promulgated
thereunder.
"Exchange Notes" shall have the meaning set forth
in Section 2(a) hereof.
"Exchange Offer" shall have the meaning set forth
in Section 2(a) hereof.
"Exchange Registration Statement" shall have the
meaning set forth in Section 2(a) hereof.
"Filing Date" shall mean (a) if no Registration Statement has
been filed by the Company pursuant to this Agreement, the 45th day
after the Issue Date; provided, however, that if a Shelf Notice is
given within 10 days of the Filing Date, then the Filing Date with
respect to the initial Shelf Registration shall be the 15th calendar
day after the date of the giving of such Shelf Notice; and (b) in each
other case (which may be applicable notwithstanding the consummation of
the Exchange Offer), the 30th day after the delivery of a Shelf Notice.
"Holder" shall mean any holder of a Registrable
Note or Registrable Notes.
"Indemnified Person" shall have the meaning set
forth in Section 7(c) hereof.
"Indemnifying Person" shall have the meaning set
forth defined in Section 7(c) hereof.
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"Indenture" shall mean the Indenture, dated as of March 1,
1997, between the Company and The Bank of New York, 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" shall have the meaning set forth in the
first introductory paragraph hereto.
"Inspectors" shall have the meaning set forth in
Section 5(o) hereof.
"Issue Date" shall mean the date on which the original Notes
were sold to the Initial Purchasers pursuant to the Purchase Agreement.
"Majority Holders" shall have the meaning set
forth in Section 3(c) hereof.
"NASD" shall have the meaning set forth in
Section 5(s) hereof.
"Notes" shall have the meaning set forth in the
second introductory paragraph hereto.
"Participant" shall have the meaning set forth in
Section 7(a) hereof.
"Participating Broker-Dealer" shall have the
meaning set forth in Section 2(b) hereof.
"Person" shall mean an individual, trustee, corporation,
partnership, limited liability company, joint stock company, trust,
unincorporated association, union, business association, firm or other
legal entity.
"Private Exchange" shall have the meaning set
forth in Section 2(b) hereof.
"Private Exchange Notes" shall have the meaning
set forth in Section 2(b) hereof.
"Prospectus" shall mean the prospectus included in any
Registration Statement (including 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
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reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, and all other
amendments and supplements to the Prospectus, with respect to the terms
of the offering of any portion of the Registrable Notes covered by such
Registration Statement including posteffective amendments, and all
material incorporated by reference or deemed to be incorporated by
reference in such Prospectus.
"Purchase Agreement" shall have the meaning set forth in the
second introductory paragraph hereto.
"Records" shall have the meaning set forth in
Section 5(o) hereof.
"Registrable Notes" shall mean each Note upon original
issuance of the Notes and at all times subsequent thereto, each
Exchange Note as to which Section 2(c)(iv) hereof is applicable upon
original issuance and at all times subsequent thereto and each Private
Exchange Note upon original issuance thereof and at all times
subsequent thereto, until in the case of any such Note, Exchange Note
or Private Exchange Note, as the case may be, the earliest to occur of
(i) a Registration Statement (other than, with respect to any Exchange
Note as to which Section 2(c)(iv) hereof is applicable, the Exchange
Registration Statement) covering such Note, Exchange Note or Private
Exchange Note, as the case may be, has been declared effective by the
SEC and such Note (unless such Note was not tendered for exchange by
the Holder thereof), Exchange Note or Private Exchange Note, as the
case may be, has been disposed of in accordance with such effective
Registration Statement, (ii) such Note, Exchange Note or Private
Exchange Note, as the case may be, is sold in compliance with Rule 144,
or (iii) such Note, Exchange Note or Private Exchange Note, as the case
may be, ceases to be outstanding for purposes of the Indenture.
"Registration Statement" shall mean any registration statement
of the Company, including, but not limited to, the Exchange
Registration Statement, that covers any of the Registrable Notes
pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statement, including
posteffective
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amendments, all exhibits, and all material incorporated
by reference or deemed to be incorporated by reference
in such registration statement.
"Rule 144" shall mean Rule 144 promulgated under the
Securities Act, as such Rule may be amended from time to time, or any
similar rule (other than Rule 144A) or regulation hereafter adopted by
the SEC providing for offers and sales of securities made in compliance
therewith resulting in offers and sales by subsequent holders that are
not affiliates of an issuer of such securities being free of the
registration and prospectus delivery requirements of the Securities
Act.
"Rule 144A" shall mean Rule 144A promulgated under the
Securities Act, as such Rule may be amended from time to time, or any
similar rule (other than Rule 144) or regulation hereafter adopted by
the SEC.
"Rule 415" shall mean Rule 415 promulgated under the
Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
"SEC" shall mean the Securities and Exchange
Commission.
"Securities Act" shall mean the Securities Act of 1933 and the
rules and regulations of the SEC promulgated thereunder.
"Shelf Notice" shall have the meaning set forth
in Section 2(c) hereof.
"Shelf Registration" shall have the meaning set
forth in Section 3(a) hereof.
"TIA" shall mean the Trust Indenture Act of 1939,
as amended.
"Trustee" shall mean the trustee under the Indenture and, if
existent, the trustee under any indenture governing the Exchange Notes
and Private Exchange Notes (if any).
"Underwritten registration or underwritten
offering" shall mean a registration in which securities
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of the Company are sold to an underwriter for
reoffering to the public.
SECTION 2. Exchange Offer. (a) The Company agrees to file with
the SEC no later than the Filing Date an offer to exchange (the "Exchange
Offer") any and all of the Registrable Notes (other than the Private Exchange
Notes, if any) for a like aggregate principal amount of debt securities of the
Company, which are identical in all material respects to the Notes (the
"Exchange Notes") (and which are entitled to the benefits of the Indenture or a
trust indenture which is identical in all material respects 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), except that the Exchange Notes (other than
Private Exchange Notes, if any) (i) shall have been registered pursuant to an
effective Registration Statement under the Securities Act, (ii) shall contain no
restrictive legend thereon and (iii) shall not contain any requirement by the
Company to pay Additional Interest (other than with respect to periods prior to
the issuance of such Exchange Notes). The Exchange Offer shall be registered
under the Securities Act on the appropriate form (the "Exchange Registration
Statement") and shall comply with all applicable tender offer rules and
regulations under the Exchange Act. The Company agrees to use its best efforts
to (x) cause the Exchange Registration Statement to be declared effective under
the Securities Act on or before the Effectiveness Date; (y) keep the Exchange
Offer open for at least 30 calendar days (or longer if required by applicable
law) after the date that notice of the Exchange Offer is mailed to Holders; and
(z) consummate the Exchange Offer on or prior to the 150th day following the
Issue Date. If after such Exchange Registration Statement is declared effective
by the SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder
is interfered with by any stop order, injunction or other order or requirement
of the SEC or any other governmental agency or court, such Exchange Registration
Statement shall be deemed not to have become effective for purposes of this
Agreement. 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
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distribution of the Exchange Notes in violation of the provisions of the
Securities Act, and that such Holder is not an affiliate of the Company within
the meaning of the Securities Act. Upon consummation of the Exchange Offer in
accordance with this Section 2, the Company shall have no further obligation to
register Registrable Notes (other than Private Exchange Notes and other than in
respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies)
pursuant to Section 3 hereof. No securities other than the Exchange Notes shall
be included in the Exchange Registration Statement.
(b) The Company shall include within the Prospectus contained
in the Exchange 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 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"), whether such positions or policies have
been publicly disseminated by the Staff of the SEC or such positions or
policies, in the judgment of counsel for the Initial Purchasers, represent the
prevailing views of the Staff of the SEC. Such "Plan of Distribution" section
shall also expressly permit 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.
If any Participating Broker-Dealer participates in the
Exchange Offer and notifies the Company or causes the Company to be notified in
writing that it is a Participating Broker-Dealer within 30 days after the last
date for which exchanges are accepted pursuant to the Exchange Offer, the
Company shall use its reasonable efforts to keep the Exchange Registration
Statement effective and to amend and supplement the Prospectus contained
therein, in order to permit such Prospectus to be lawfully delivered by any
Participating Broker-Dealer subject to the prospectus delivery requirements of
the Securities Act for such period of time as is necessary to comply with
applicable law in connection with any resale of the Exchange Notes; provided,
however, that such period shall not exceed 180 days after
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the last date for which exchanges are accepted pursuant to the Exchange Offer
(or such shorter period when all Exchange Notes received by Participating
Broker-Dealers in exchange for Registrable Notes acquired for their own account
as a result of market-making or other trading activities have been disposed of
by such Participating Broker-Dealers or such longer period if extended pursuant
to the last paragraph of Section 5 hereof) (the "Applicable Period"); and
Participating Broker-Dealers shall not be authorized by the Company to, and
shall not, deliver such Prospectus after such period in connection with resales
contemplated by this Section 2(b) or otherwise.
If, prior to the last date for which exchanges are accepted
pursuant to the Exchange Offer, the Initial Purchasers hold any Notes acquired
by them and having the status of an unsold allotment in the initial
distribution, the Company shall, upon the request of any of the Initial
Purchasers, simultaneously with the delivery of the Exchange Notes in the
Exchange Offer issue and deliver to the Initial Purchasers in exchange (the
"Private Exchange") for such Notes held by the Initial Purchasers a like
principal amount of debt securities of the Company that are identical in all
material respects to the Exchange Notes (the "Private Exchange Notes") (and
which are issued pursuant to the same indenture as the Exchange Notes) except
for the placement of a restrictive legend on such Private Exchange Notes. The
Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
Interest on the Exchange Notes and the Private Exchange Notes
will accrue from the last interest payment date on which interest was paid on
the Notes surrendered in exchange therefor or, if no interest has been paid on
the Notes, from March 1, 1997.
In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii) utilize the services of a depositary for the
Exchange Offer with an address in the Borough of
Manhattan, The City of New York;
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(iii) 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; and
(iv) otherwise comply in all material respects with
all applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer
or the Private Exchange, as the case may be, the Company shall:
(i) accept for exchange all Notes tendered and not
validly withdrawn pursuant to the Exchange Offer or the
Private Exchange;
(ii) deliver to the Trustee for cancelation all
Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to
each Holder of Notes, either Exchange Notes or Private Exchange Notes,
as the case may be, equal in principal amount to the Notes of such
Holder so accepted for exchange.
The Exchange Notes and the Private Exchange Notes may be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture, which in either event shall provide that (A) the
Exchange Notes shall not be subject to the transfer restrictions applicable to
the Notes or the requirement of the Company to pay Additional Interest thereon
and (B) the Private Exchange Notes shall be subject to the transfer restrictions
applicable to the Notes. The Indenture or such indenture shall provide that the
Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent
together on all matters as one class and that none of the Exchange Notes, the
Private Exchange Notes or the Notes will have the right to vote or consent as a
separate class on any matter.
(c) If (i) because of any change in law or in currently
prevailing interpretations of the Staff of the SEC, the Company is not permitted
to effect an Exchange offer, (ii) the Exchange Offer is not consummated within
150 days of the Issue Date, (iii) any holder of Private Exchange Notes so
requests at any time after the consummation of the Private Exchange or (iv) in
the case of any Holder that participates in the Exchange Offer, such
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Holder does not receive Exchange Notes on the date of the exchange that may be
sold without restriction under federal securities laws (other than due solely to
the status of such Holder as an affiliate of the Company within the meaning of
the Securities Act), then the Company shall promptly deliver written notice
thereof (the "Shelf Notice") to the Trustee and, in the case of clauses (i) and
(ii), all Holders, in the case of clause (iii), the Holders of the Private
Exchange Notes and, in the case of clause (iv), the affected Holder, and shall
file a Shelf Registration pursuant to Section 3 hereof.
SECTION 3. Shelf Registration. If a Shelf Notice is delivered
as contemplated by Section 2(c) hereof, then:
(a) Shelf Registration. The Company shall file with the SEC
prior to the Filing Date a Registration Statement for an offering to be made on
a continuous basis pursuant to Rule 415 covering all the Registrable Notes (the
"Shelf Registration"). The Shelf Registration shall be on Form S-3 or another
appropriate form permitting registration of such Registrable Notes for resale by
Holders in the manner or manners designated by them. The Company shall not
permit any securities other than the Registrable Notes to be included in the
Shelf Registration.
The Company shall use its best efforts to cause the Shelf
Registration to be declared effective under the Securities Act on or prior to
the Effectiveness Date and shall use its reasonable efforts to keep the Shelf
Registration continuously effective under the Securities Act until the date
which is three years from the Issue Date, subject to extension pursuant to the
last paragraph of Section 5 hereof (the "Effectiveness Period"), or such shorter
period ending when all Registrable Notes covered by the Shelf Registration have
been sold in the manner set forth and as contemplated in the Shelf Registration.
(b) Withdrawal of Stop Orders. If the Shelf Registration
ceases to be effective for any reason at any time during the Effectiveness
Period (other than because of the sale of all the securities registered
thereunder), the Company shall use its best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof.
(c) Supplements and Amendments. The Company
shall promptly supplement and amend the Shelf Registration
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if required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration, if required by the
Securities Act, or if reasonably requested by the Holders of a majority in
aggregate principal amount (the "Majority Holders") of the Registrable Notes
covered by such Registration Statement or by any underwriter of such Registrable
Notes.
SECTION 4. Additional Interest. (a) The Company and the
Initial Purchasers agree that the Holders of Registrable Notes will suffer
damages if the Company fails to fulfill its obligations under Section 2 or
Section 3 hereof and that it would not be feasible to ascertain the extent of
such damages with precision. Accordingly, the Company agrees to pay, as
liquidated damages, additional interest on the Notes ("Additional Interest")
under the circumstances and to the extent set forth below:
(i) if (A) neither the Exchange Registration Statement nor the
Shelf Registration has been filed on or prior to the applicable Filing
Date or (B) notwithstanding that the Company has consummated or will
consummate an Exchange Offer, the Company is required to file a Shelf
Registration Statement and such Shelf Registration Statement is not
filed on or prior to the Filing Date applicable thereto, then,
commencing on the day after the Filing Date applicable thereto,
Additional Interest shall accrue on the Notes over and above the stated
interest at a rate of 0.50% per annum;
(ii) if (A) neither the Exchange Registration Statement nor the
Shelf Registration is declared effective by the SEC on or prior to the
relevant Effectiveness Date or (B) notwithstanding that the Company has
consummated or will consummate the Exchange Offer, the Company is
required to file a Shelf Registration and such Shelf Registration is
not declared effective by the SEC on or prior to the Effectiveness Date
in respect of such Shelf Registration, then, commencing on the day
after such Effectiveness Date, Additional Interest shall accrue on the
Notes included or which should have been included in such Registration
Statement over and above the stated interest at a rate of 0.50% per
annum; and
(iii) if (A) the Company has not exchanged Exchange
Notes for all Notes validly tendered in accordance with
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the terms of the Exchange Offer on or prior to the 150th day after the
Issue Date or (B) the Exchange Registration Statement ceases to be
effective at any time prior to the time that the Exchange Offer is
consummated or (C) if applicable, the Shelf Registration has been
declared effective and such Shelf Registration ceases to be effective
at any time during the Effectiveness Period, then Additional Interest
shall accrue (over and above any interest otherwise payable on such
Notes) at a rate of 0.50% per annum on (x) the 151st day after the
Issue Date with respect to the Notes validly tendered and not exchanged
by the Company, in the case of (A) above, or (y) the day the Exchange
Registration Statement ceases to be effective in the case of (B) above,
or (z) the day such Shelf Registration ceases to be effective in the
case of (C) above (it being understood and agreed that, notwithstanding
any provision to the contrary, so long as any Note which is the subject
of a Shelf Notice is then covered by an effective Shelf Registration
Statement, no Additional Interest shall accrue on such Note);
provided, however, that the Additional Interest rate on any affected Note may
not exceed at any one time in the aggregate 0.50% per annum; and provided
further that (1) upon the filing of the Exchange Registration Statement or a
Shelf Registration (in the case of clause (i) of this Section 4(a)), (2) upon
the effectiveness of the Exchange Registration Statement or the Shelf
Registration (in the case of clause (ii) of this Section 4(a)), or (3) upon the
exchange of Exchange Notes for all Notes tendered and not validly withdrawn (in
the case of clause (iii)(A) of this Section 4(a)), or upon the effectiveness of
the Exchange Registration Statement which had ceased to remain effective (in the
case of (iii)(B) of this Section 4(a)), or upon the effectiveness of the Shelf
Registration which had ceased to remain effective (in the case of (iii)(C) of
this Section 4(a)), Additional Interest on the affected Notes as a result of
such clause (or the relevant subclause thereof), as the case may be, shall cease
to accrue.
(b) The Company shall notify the Trustee within three business
days after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Any amounts of
Additional Interest due pursuant to clauses (a)(i), (a)(ii) or (a)(iii) of this
Section 4 will be payable to the Holders of affected Notes in cash semiannually
on each March 1 and
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September 1 (to the holders of record on the February 15 and August 15
immediately preceding such dates), commencing with the first such date occurring
after any such Additional Interest commences to accrue. The amount of Additional
Interest will be determined by multiplying the applicable Additional Interest
rate by the principal amount of the affected Registrable Notes of such Holders,
multiplied by a fraction, the numerator of which is the number of days such
Additional Interest rate was applicable during such period (determined on the
basis of a 360-day year comprised of twelve 30-day months and, in the case of a
partial month, the actual number of days elapsed), and the denominator of which
is 360.
SECTION 5. Registration Procedures. In connection with the
filing of any Registration Statement pursuant to Sections 2 or 3 hereof, the
Company shall effect such registration(s) to permit the sale of the securities
covered thereby in accordance with the intended method or methods of disposition
thereof, and pursuant thereto and in connection with any Registration Statement
filed by the Company hereunder, the Company shall:
(a) prepare and file with the SEC prior to the Filing Date a
Registration Statement or Registration Statements as prescribed by
Sections 2 or 3 hereof, to use its best efforts to cause each such
Registration Statement to become effective and to use its reasonable
efforts to cause such Registration Statement to remain effective as
provided herein; provided, however, that, if (i) such filing is
pursuant to Section 3 hereof, or (ii) a Prospectus contained in an
Exchange 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 Company shall, if requested,
furnish to and afford the Holders of the Registrable Notes covered by
such Registration Statement or each such Participating Broker-Dealer,
as the case may be, one counsel selected by the Majority Holders (the
"Majority Counsel") and the managing underwriters of an underwritten
offering (and their counsel, if any) of Registrable Notes, 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
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thereto) proposed to be filed (in each case at least five business days
prior to such filing). The Company shall not file any Registration
Statement or Prospectus or any amendments or supplements thereto in
respect of which the Holders must be afforded an opportunity to review
prior to the filing of such document, if the Majority Holders of the
Registrable Notes covered by such Registration Statement, or any such
Participating Broker-Dealer, as the case may be, the Majority Counsel,
or the managing underwriters (or their counsel, if any), if any, shall
reasonably object;
(b) prepare and file with the SEC such amendments and
posteffective amendments to each Shelf Registration or Exchange
Registration Statement, as the case may be, as may be necessary to keep
such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period or until consummation of
the Exchange Offer, as the case may be; cause the related Prospectus to
be supplemented by any Prospectus supplement required by applicable
law, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) under the Securities Act; and comply
with the provisions of the Securities Act and the Exchange Act
applicable to it with respect to the disposition of all securities
covered by such Registration Statement as so amended or in such
Prospectus as so supplemented and with respect to the subsequent resale
of any securities being sold by a Participating Broker-Dealer covered
by any such Prospectus; the Company will be deemed not to have used its
reasonable efforts to cause the Exchange Offer Registration Statement
or any Shelf Registration Statement, as the case may be, to remain
effective during the Applicable Period or the Effectiveness Period, as
the case may be, if the Company voluntarily takes any action that would
result in the Holder of Registrable Notes covered thereby or
Participating Broker-Dealers seeking to sell Exchange Notes not being
able to sell such Registrable Notes or Exchange Notes, as the case may
be, during that period unless (i) such action is, in the reasonable
judgment of the Company, required by applicable law (including any
interpretation of the SEC) or (ii) such action is taken by the Company
in good faith and for valid business reasons (not including avoidance
of the Company's obligations hereunder), including the acquisition or
divestiture of assets, so long as the Company promptly
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complies with the requirements of Section 5(k) hereof
and the last paragraph of this Section 5;
(c) if (i) a Shelf Registration is filed pursuant to Section 3
hereof, or (ii) a Prospectus contained in an Exchange 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 Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, the Majority Counsel and the
managing underwriters of an underwritten offering of Registrable Notes
and their counsel, if any, promptly (but in any event within three
business days) (A) when a Prospectus or any supplement thereto or
posteffective amendment has been filed, and, with respect to a
Registration Statement or any posteffective amendment, when the same
has become effective under the Securities Act (including in such notice
a written statement that any Holder may, upon request, obtain, at the
sole expense of the Company, one conformed copy of such Registration
Statement or posteffective amendment including financial statements and
schedules, documents incorporated or deemed to be incorporated by
reference and exhibits), (B) 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 preliminary
prospectus or the initiation of any proceedings for that purpose, (C)
if at any time when a prospectus is required by the Securities Act to
be delivered in connection with sales of the Registrable Notes or
resales of Exchange Notes by Participating Broker-Dealers upon written
notice by any such Participating Broker-Dealer of a resale, the
representations and warranties of the Company contained in any
agreement (including any underwriting agreement), contemplated by
Section 5(n) hereof cease to be true and correct, (D) of the receipt by
the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of a Registration
Statement or any of the Registrable Notes or the Exchange Notes to be
sold by any Participating Broker-Dealer for offer or sale in any
jurisdiction, or the initiation or threatening of any proceeding for
such purpose, (E) of the happening of any event, the existence of any
condition or any information becoming known that makes any statement
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made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any
changes in or amendments or supplements to such Registration Statement,
Prospectus or documents so that, in the case of the Registration
Statement, 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 (F)
of the determination by the Company that a posteffective amendment to a
Registration Statement would be appropriate;
(d) use its reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement or the
qualification (or exemption from qualification) of any of the
Registrable Notes or the Exchange Notes for sale in any jurisdiction as
soon as practicable;
(e) if a Shelf Registration is filed pursuant to Section 3 and
if requested by the managing underwriter or underwriters (if any), or
the Holders of a majority in principal amount of the Registrable Notes
being sold in connection with an underwritten offering, (i) promptly
incorporate in a prospectus supplement or posteffective amendment such
information as the managing underwriter or underwriters (if any), such
Holders, or counsel for any of them reasonably request to be included
therein, (ii) make all required filings of such prospectus supplement
or such posteffective amendment as soon as practicable after the
Company has received notification of the matters to be incorporated in
such prospectus supplement or posteffective amendment, and (iii)
supplement or make amendments to such Registration Statement;
(f) if (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who
17
seeks to sell Exchange Notes during the Applicable Period, furnish to
each selling Holder of Registrable Notes and to each such Participating
Broker-Dealer who so requests, to the Majority Counsel and to each
managing underwriter of an underwritten public offering of Registrable
Notes and their counsel, if any, at the sole expense of the Company,
one conformed copy of the Registration Statement or Registration
Statements and each posteffective 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 is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange 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 of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, the Majority Counsel, and to the
underwriters, if any, and such underwriters' counsel, at the sole
expense of the Company, as many copies of the Prospectus or
Prospectuses (including each form of preliminary prospectus) and each
amendment 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, the Company hereby consents to
the use of such Prospectus and each amendment or supplement thereto by
each of the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, and the underwriters
or agents, if any, and dealers (if any), in connection with the
offering and sale of the Registrable Notes 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 Registrable Notes or any
delivery of a Prospectus contained in the Exchange Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, use its reasonable efforts to
register or qualify such Registrable Notes (and to cooperate with
selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may
18
be, the Majority Counsel, the managing underwriter or underwriters, if
any, and such underwriters' counsel in connection with the registration
or qualification (or exemption from such registration or qualification)
of such Registrable Notes) for offer and sale under the securities or
Blue Sky laws of such jurisdictions within the United States as any
selling Holder, Participating Broker-Dealer, or the managing
underwriter or underwriters of an underwritten offering of Registrable
Notes shall reasonably request in writing; provided, however, that
where Exchange Notes held by Participating Broker-Dealers or
Registrable Notes are offered other than through an underwritten
offering, the Company agrees to cause its counsel to perform Blue Sky
investigations and file registrations and qualifications required to be
filed pursuant to this Section 5(h); 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 Registrable Notes covered by the
applicable Registration Statement; provided, however, that the Company
shall not be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action
that would subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) subject itself to
taxation in excess of a nominal dollar amount in any such jurisdiction
where it is not then so subject;
(i) if a Shelf Registration is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes
to be sold, which certificates shall not bear any restrictive legends
(except any customary legend borne by securities held through The
Depository Trust Company or any similar depository) and shall be in a
form eligible for deposit with The Depository Trust Company; and enable
such Registrable Notes to be in such denominations (consistent with the
provisions of the Indenture and the officers' certificate establishing
the form and terms of the Notes pursuant to the Indenture) and
registered in such names as the
19
managing underwriter or underwriters, if any, or
Holders may reasonably request;
(j) use its reasonable efforts to cause the Registrable Notes
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 Holders thereof or the underwriter or underwriters, if
any, to dispose of such Registrable Notes, except as may be required
solely as a consequence of the nature of a selling Holder's business,
in which case the Company will cooperate in all reasonable respects
with the filing of such Registration Statement and the granting of such
approvals;
(k) if (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange 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)(ii)(E) or
5(c)(ii)(F) hereof, as promptly as practicable prepare and (subject to
Section 5(a) hereof) file with the SEC, at the sole expense of the
Company, a supplement or posteffective amendment to the Registration
Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file
any other required document so that, as thereafter delivered to the
purchasers of the Registrable Notes 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;
(l) use its reasonable efforts to cause the Registrable Notes
covered by a Registration Statement or the Exchange Notes, as the case
may be, to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration
20
Statement or the Exchange Notes, as the case may be, or
the managing underwriter or underwriters, if any;
(m) prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee
with certificates for the Registrable Notes or Exchange Notes, as the
case may be, in a form eligible for deposit with The Depository Trust
Company and (ii) provide a CUSIP number for the Registrable Notes or
Exchange Notes, as the case may be;
(n) in connection with any underwritten offering of
Registrable Notes pursuant to a Shelf Registration, negotiate in good
faith and enter into an underwriting agreement, which shall be in form
and scope as is customary in underwritten offerings of debt securities
with similar credit ratings to the Notes and take all such other
actions as are reasonably requested by the managing underwriter or
underwriters in order to facilitate the registration or the disposition
of such Registrable Notes and, in such connection, (i) make such
representations and warranties to, and covenants with, the underwriters
with respect to the business of the Company and its subsidiaries 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 of debt securities with similar credit ratings
to the Notes, and confirm the same in writing if and when requested;
(ii) obtain the written opinion of counsel to the Company (which may be
the Company's General Counsel) and written updates thereof in form,
scope and substance reasonably satisfactory to the managing underwriter
or underwriters, addressed to the underwriters covering the matters
customarily covered in opinions requested in underwritten offerings of
debt securities with similar credit ratings to the Notes and such other
matters as may be reasonably requested by the managing underwriter or
underwriters; (iii) obtain "cold comfort" letters and updates thereof
in form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters from the independent certified public
accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which
21
financial statements and financial data are, or are required to be,
included or incorporated by reference in the Registration Statement),
addressed to each of the underwriters, such letters to be in customary
form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings of debt
securities with similar credit ratings to the Notes and such other
matters as reasonably requested by the managing underwriter or
underwriters; 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
provisions and procedures acceptable to the Majority Holders of
Registrable Notes covered by such Registration Statement and the
managing underwriter or underwriters or agents) with respect to all
parties to be indemnified pursuant to said Section. The above shall be
done at the closing under such underwriting agreement, or as and to the
extent required thereunder;
(o) if (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange 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, and to
the extent customary in connection with a due diligence investigation
for an offering of debt securities with a similar credit rating, make
available for inspection by representatives approved by the Majority
Holders of such Registrable Notes being sold, or such Participating
Broker-Dealers, as the case may be, any underwriter participating in
any such disposition of Registrable Notes, if any, one counsel to the
underwriters, if any (collectively, the "Inspectors"), at the offices
where normally kept, during reasonable business hours, all financial
and other records, pertinent corporate documents and instruments of the
Company and its subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due
diligence responsibilities. Records which the Company 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 disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such
22
Registration Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction, (iii) disclosure of such information is, in the opinion
of counsel for any Inspector, necessary or advisable in connection with
any action, claim, suit or proceeding, directly or indirectly,
involving or potentially involving such Inspector and arising out of,
based upon, relating to, or involving this Agreement, or any
transactions contemplated hereby or arising hereunder, or (iv) the
information in such Records has been made generally available to the
public. Each selling Holder of such Registrable Securities and each
such Participating Broker-Dealer will be required to agree that
information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Company unless and until
such information is generally available to the public. Each selling
Holder of such Registrable Notes and each such Participating
Broker-Dealer will be required to further agree that it will, upon
learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and allow the
Company to undertake appropriate action to prevent disclosure of the
Records deemed confidential at the Company's sole expense;
(p) provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and use its reasonable efforts
to cause the Indenture or the trust indenture provided for in Section
2(a) hereof, as the case may be, to be qualified under the TIA not
later than the effective date of the Exchange Offer or the first
Registration Statement relating to the Registrable Notes; and in
connection therewith, cooperate with the trustee under any such
indenture and the Holders of the Registrable Notes, 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 efforts to cause such trustee to execute, all
documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable such
indenture to be so qualified in a timely manner;
23
(q) comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders earnings
statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Notes are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods;
(r) if an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Company (or to such other Person as directed by the Company) in
exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be, the Company shall xxxx, or cause to be marked, on such
Registrable Notes that such Registrable Notes are being canceled in
exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be; in no event shall such Registrable Notes be marked as paid
or otherwise satisfied;
(s) cooperate with each seller of Registrable Notes covered by
any Registration Statement and each underwriter, if any, participating
in the disposition of such Registrable Notes and their respective
counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD"); and
(t) use its reasonable efforts to take all other steps
necessary or advisable to effect the registration of the Registrable
Notes covered by a Registration Statement contemplated hereby.
The Company may require each seller of Registrable Notes as to
which any Registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable Notes
as the Company may, from time to time, reasonably request. The Company may
exclude from such registration the Registrable
24
Notes of any seller who unreasonably fails to furnish such information within a
reasonable time after receiving such request. Each seller as to which any Shelf
Registration is being effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such seller not materially misleading.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
to be sold by such Participating Broker-Dealer, as the case may be, that, upon
actual receipt of any notice from the Company of the happening of any event of
the kind described in Section 5(c)(ii)(B), 5(c)(ii)(D), 5(c)(ii)(E), or
5(c)(ii)(F) hereof, such Holder will forthwith discontinue disposition of such
Registrable Notes covered by such Registration Statement or Prospectus or
Exchange Notes to be sold by such Holder or Participating Broker-Dealer, as the
case may be, until such Holder's or Participating Broker-Dealer's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof, or until it is advised in writing (the "Advice") by the Company that the
use of the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. In the event the Company shall give any such
notice, each of the Effectiveness Period and the Applicable Period shall be
extended by the number of days during such periods from and including the date
of the giving of such notice to and including the date when each seller of
Registrable Notes covered by such Registration Statement or Exchange Notes to be
sold by such Participating Broker-Dealer, as the case may be, shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 5(k) hereof or (y) the Advice.
SECTION 6. Registration Expenses. (a) All fees and expenses
incident to the performance of or compliance with this Agreement by the Company
shall be borne by the Company whether or not the Exchange Offer or a Shelf
Registration is filed or becomes effective, including (i) all registration and
filing fees (including (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 reasonable fees
and disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the
25
eligibility of the Registrable Notes or Exchange Notes for investment under the
laws of such jurisdictions (x) where the holders of Registrable Notes are
located, in the case of the Exchange Notes, or (y) as provided in Section 5(h)
hereof, in the case of Registrable Notes or Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses, including expenses of printing certificates for Registrable Notes or
Exchange Notes in a form eligible for deposit with The Depository Trust Company
and of printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, by the Majority Holders of the
Registrable Notes included in any Registration Statement or sold by any
Participating Broker-Dealer, as the case may be, (iii) messenger, telephone and
delivery expenses, (iv) fees and disbursements of counsel for the Company and,
subject to the provisions of Section 6(b) hereof, reasonable fees and
disbursements of counsel for the sellers of Registrable Notes, (v) fees and
disbursements of all independent certified public accountants referred to in
Section 5(n)(iii) hereof (including the expenses of any special audit and "cold
comfort" letters required by or incident to such performance), (vi) rating
agency fees, if any, and any fees associated with making the Registrable Notes
or Exchange Notes eligible for trading through The Depository Trust Company,
(vii) Securities Act liability insurance, if the Company desires such insurance,
(viii) fees and expenses of all other Persons retained by the Company, (ix)
internal expenses of the Company (including all salaries and expenses of
officers and employees of the Company performing legal or accounting duties),
(x) the expense of any annual audit, (xi) the fees and expenses incurred in
connection with the listing of the securities to be registered on any securities
exchange, if applicable, and (xii) the expenses relating to printing, word
processing and distributing all Registration Statements, any underwriting
agreement, indentures and any other documents necessary in order to comply with
this Agreement.
(b) The Company shall (i) reimburse the Holders of the
Registrable Notes being registered pursuant to this Agreement for the reasonable
fees and disbursements, in an aggregate amount not to exceed $25,000, of not
more than one counsel (in addition to appropriate local counsel) chosen by the
Majority Holders of the Registrable Notes to be included in such Registration
Statement and (ii) reimburse out-of-pocket expenses (other than legal expenses)
of Holders of Registrable Notes incurred in connection with the
26
registration and sale of the Registrable Notes pursuant to a Shelf Registration
or in connection with the exchange of Registrable Notes pursuant to the Exchange
Offer.
SECTION 7. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Holder of Registrable Notes offered pursuant to
a Shelf Registration Statement and each Participating Broker-Dealer selling
Exchange Notes during the Applicable Period, the affiliates, directors,
officers, agents, representatives and employees of each such Person or its
affiliates, and each other Person, if any, who controls any such Person or its
affiliates within the meaning of either Section 15 of the Securities Act or
Section 20(a) of the Exchange Act (each, a "Participant"), from and against any
and all losses, liabilities, claims, damages and expenses whatsoever as incurred
(including reasonable attorneys' fees and any and all expenses whatsoever
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, and any and all amounts paid
in settlement of any claim or litigation), joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or otherwise,
insofar as such losses, liabilities, claims, damages or expenses (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
pursuant to which the offering of such Registrable Notes or Exchange Notes, as
the case may be, is registered, or in any supplement thereto or amendment
thereof, or any related Prospectus, or any supplement thereto or amendment
thereof, or any related preliminary Prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading;
provided, however, that the Company will not be liable to any Participant in any
such case to the extent but only to the extent that any such loss, liability,
claim, damage or expense arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information relating to
such Participant furnished to the Company in writing by or on behalf of such
Participant expressly for use therein; provided further, however, that such
indemnity agreement with respect to any preliminary Prospectus shall not inure
to the benefit of any Participant from whom the Person asserting any loss,
liability, claim, damage or expense purchased Registrable
27
Notes or Exchange Notes, as the case may be, if a copy of the Prospectus filed
as part of an effective Registration Statement (as then amended or supplemented
and furnished by the Company to such Participant) was not sent or given by or on
behalf of such Participant to such Person, if such is required by law, at or
prior to the sale of such Registrable Notes or Exchange Notes, as the case may
be, and if such Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such loss, liability, claim, damage or expense. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have, including under this Agreement.
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors and officers and each
Person who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act to the same extent as the
foregoing indemnity from the Company to each Participant, but only (i) with
reference to information relating to such Participant furnished to the Company
in writing by or on behalf of such Participant expressly for use in any
Registration Statement or Prospectus, any amendment or supplement thereto, or
any preliminary prospectus or (ii) with respect to any untrue statement or
representation made by such Participant in writing to the Company.
(c) Promptly after receipt by any Person in respect of which
indemnity may be sought under subsection (a) or (b) above of notice of the
commencement of any action, such Person (the "Indemnified Person") shall, if a
claim in respect thereof is to be made against the Person whom such indemnity
may be sought (the "Indemnifying Person") under such subsection, notify each
Indemnifying Person against whom indemnification is to be sought in writing of
the commencement thereof (but the failure so to notify an Indemnifying Person
shall not relieve it from any liability which it may have under paragraph (a) or
(b) above). In case any such action is brought against any Indemnified Person,
and it notifies an Indemnifying Person of the commencement thereof, the
Indemnifying Person will be entitled to participate therein, and to the extent
it may elect by written notice delivered to the Indemnified Person promptly
after receiving the aforesaid notice from such Indemnified Person, to assume the
defense thereof with counsel satisfactory to such Indemnified Person.
Notwithstanding the foregoing, the Indemnified Person or parties
28
shall have the right to employ its or their own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Person or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the Indemnifying Persons in connection
with the defense of such action, (ii) the Indemnifying Persons shall not have
employed counsel to take charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
Indemnified Person or Persons shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to one or all of the Indemnifying Persons (in which case the
Indemnifying Persons shall not have the right to direct the defense of such
action on behalf of the Indemnified Person or Persons), in any of which events
such fees and expenses shall be borne by the Indemnifying Persons. Anything in
this subsection to the contrary notwithstanding, an Indemnifying Person shall
not be liable for any settlement of any claim or action effected without its
written consent; provided, however, that such consent was not unreasonably
withheld.
(d) In order to provide for contribution in circumstances in
which the indemnification provided for in the preceding paragraphs of this
Section 7 is for any reason held to be unavailable from any Indemnifying Person
or is insufficient to hold harmless an Indemnified Person thereunder, each
Indemnifying Person shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the Company any
contribution received by the Company from persons, other than the Indemnified
Persons, who may also be liable for contribution, including persons who control
the Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, officers and directors of the Company) as incurred to which the
Indemnified Party may be subject, in such proportions as is appropriate to
reflect the relative benefits received by the Indemnifying Person or Persons, on
the one hand, and the Indemnified Person or Persons on the other from the
offering of the Notes or, if such allocation is not permitted by applicable law
or indemnification is not available as a result of the
29
Indemnifying Person not having received notice as provided in the preceding
paragraphs of this Section 7, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Indemnifying Person or Persons, on the one hand, and the Indemnified Person
or Persons on the other in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative fault of the parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Participant 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
paragraph (d) were determined by pro rata allocation (even if the Participants
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), (i) in no case
shall a Participant be required to contribute any amount in excess of the amount
by which proceeds received by such Participant from sales of Registrable Notes
or Exchange Securities, as the case may be, exceeds the amount of damages that
such Participant has otherwise been required to pay or has paid by reason of
such untrue statement or alleged untrue statement or omission or alleged
omission, and (ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties, notify each party
or parties from whom contribution may be sought, but the omission to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
paragraph (d) or otherwise. No party shall be liable for contribution with
respect to any action or claim settled without its consent; provided, however,
that such consent was not unreasonably withheld.
30
SECTION 8. Rule 144 and Rule 144A. The Company covenants that
it will file the reports required to be filed by it under the Securities Act and
the Exchange Act and the rules and regulations adopted by the SEC thereunder in
a timely manner in accordance with the requirements of the Securities Act and
the Exchange Act and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder of Registrable Notes, make
publicly available annual reports and such information, documents and other
reports of the type specified in Sections 13 and 15(d) of the Exchange Act. The
Company further covenants for so long as any Registrable Notes remain
outstanding, to make available to any Holder or beneficial owner of Registrable
Notes in connection with any sale thereof and any prospective purchaser of such
Registrable Notes from such Holder or beneficial owner the information required
by Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Registrable Notes pursuant to Rule 144A.
SECTION 9. Underwritten Registration. If any of the
Registrable Notes covered by any Shelf Registration 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 Majority
Holders of such Registrable Notes included in such offering and reasonably
acceptable to the Company.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Notes 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.
SECTION 10. Miscellaneous. (a) No Inconsistent Agreements. The
Company has not entered, as of the date hereof, and the Company will 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
Registrable Notes in this Agreement or otherwise conflicts with the provisions
hereof. The Company has not entered and the Company will not enter into any
agreement with respect to any of its securities which will
31
grant to any Person piggy-back registration rights with respect to a
Registration Statement.
(b) Adjustments Affecting Registrable Notes. The Company will
not, directly or indirectly, take any action with respect to the Registrable
Notes as a class that would adversely affect the ability of the Holders of
Registrable Notes to include such Registrable Notes in a registration undertaken
pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise than with the
prior written consent of the Holders of not less than a majority in aggregate
principal amount of the then outstanding Registrable Notes. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of Registrable
Notes 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 of Registrable Notes may be given by Holders of at least
a majority in aggregate principal amount of the Registrable Notes being sold by
such Holders pursuant to such Registration Statement; provided, however, that
the provisions of this sentence may not be amended, modified or supplemented
except in accordance with the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications (including
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 facsimile:
(i) if to a Holder of the Registrable Notes or any
Participating Broker-Dealer, at the most current address of such Holder
or Participating Broker-Dealer, as the case may be, set forth on the
records of the
32
registrar under the Indenture, with a copy in like manner to the
Initial Purchasers as follows:
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx, 0xx Xxxxx
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxxx
(ii) if to the Initial Purchasers, at the address
specified in Section 10(d)(i);
(iii) if to the Company, as follows:
First Brands Corporation
00 Xxxxxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: General Counsel
with copies to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile No: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
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 next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person
33
giving the same to the Trustee at the address and in the manner 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; 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 holds Registrable Notes.
(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.
(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 governed by and
construed in accordance with the laws of the State of New York, as applied to
contracts made and performed wholly 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 best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Notes Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Company or its affiliates (as
such term is defined in Rule 405 under the Securities Act)
34
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
(k) Third-Party Beneficiaries. Holders of Registrable Notes
and Participating Broker-Dealers are intended third-party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
35
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
FIRST BRANDS CORPORATION,
by /s/ XXXXXX X. XXXXX
___________________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President, Controller
& Secretary
BEAR, XXXXXXX & CO. INC.
TD SECURITIES (USA) INC.
CREDIT LYONNAIS SECURITIES
(USA) INC.
FIRST UNION CAPITAL MARKETS
CORP.,
By: Bear, Xxxxxxx & Co. Inc.,
by /s/ XXXXXXX X. X'XXXXX
___________________________________
Name: Xxxxxxx X. X'Xxxxx
Title: Senior Managing Director
