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REGISTRATION RIGHTS AGREEMENT
Dated as of March 14, 1997
by and between
Anvil Holdings, Inc.
and
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
(the "Initial Purchaser")
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of March 14, 1997 by and between Anvil Holdings, Inc., a Delaware
corporation ("Holdings") and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
(the "Initial Purchaser"), who has agreed to purchase Holdings' 13% Senior
Exchangeable Preferred Stock due 2009 (including all shares of such stock issued
substantially concurrent with the purchase by the Initial Purchaser, the "Series
A Senior Preferred Stock") pursuant to the Purchase Agreement (as defined
below).
This Agreement is made pursuant to the Purchase Agreement, dated March 11,
1997 (the "Purchase Agreement"), by and between Holdings and the Initial
Purchaser. In order to induce the Initial Purchaser to purchase the Units (as
defined in the Purchase Agreement), Holdings has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchaser set
forth in Section 4(p) 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:
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: Any day other than a Legal Holiday.
Certificate of Designation: The Certificate(s) of Designations of Holdings
pursuant to which the Securities are to be issued, as such Certificate(s) of
Designations is amended or supplemented from time to time in accordance with the
terms thereof.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Securities Act of the Exchange Offer Registration
Statement relating to the Series B Senior Preferred Stock to be issued in the
Exchange Offer, (ii) the maintenance of such Registration Statement as
continuously effective and the keeping open of the Exchange Offer for a period
not less than the minimum period required pursuant to Section 3(b) hereof and
(iii) the delivery, by Holdings to the transfer agent and registrar, of Series B
Senior Preferred Stock in the same aggregate liquidation preference as the
aggregate liquidation preference of Series A Senior Preferred Stock tendered by
the Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Securities each Dividend Payment
Date.
Dividend Payment Date: As defined in the Certificate of Designation.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by Holdings under the Securities Act of
the Series B Senior Preferred Stock pursuant to a Registration Statement
pursuant to which Holdings offers 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 Senior Preferred Stock
in an aggregate liquidation preference equal to the aggregate liquidation
preference of Transfer Restricted Securities tendered by such Holders in
response to such exchange offer.
Exchange Offer Registration Statement: The Registration Statement relating
to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchaser proposes
to sell the Series A Senior Preferred Stock to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Securities Act, and to
certain institutional "accredited investors," as such term is defined in Rule
501(1), (2), (3) and (7) of Regulation D under the Act.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Initial Purchaser: As defined in the preamble hereto.
Legal Holiday: A Saturday, a Sunday or a day on which federal offices or
banking institutions in the City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday, payment may be made on the next succeeding day that is
not a Legal Holiday, and no dividends shall accrue for the intervening period.
NASD: National Association of Securities Dealers, Inc.
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.
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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 Dividend Payment Date on which such Damages Payment Date shall
occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of Holdings relating to
(a) an offering of Series B Senior Preferred Stock 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 Act: The Securities Act of 1933, as amended.
Securities: The Series A Senior Preferred Stock and the Series B Senior
Preferred Stock.
Series B Senior Preferred Stock: Holdings' new issue of 13% Senior
Exchangeable Preferred Stock due 2009 which is to be issued in the Exchange
Offer and which is to substantially identical to the Series A Senior Preferred
Stock.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Transfer Restricted Securities: Each Security, until the earliest to occur
of (a) the date on which such Security is exchanged in the Exchange Offer by a
Person other than a Broker-Dealer for shares of the Series B Senior Preferred
Stock and is entitled to be resold to the public by the Holder thereof without
complying with the prospectus delivery requirements of the Securities Act, (b)
following the exchange by a Broker-Dealer in the Exchange Offer of a Security
for shares of the Series B Senior Preferred Stock, the date on which such shares
of the Series B Senior Preferred Stock are sold to a purchaser who receives from
such Broker-Dealer on or prior to the date of such sale a copy of the prospectus
contained in the Exchange Offer Registration Statement, (c) the date on which
such Security effectively has been registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement or (iv) the date
on which such Security is distributed to the public pursuant to Rule 144 under
the Securities Act.
Underwritten Registration or Underwritten Offering: A registration in
which securities of Holdings 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.
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(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), Holdings shall (i) cause to be filed under the
Securities Act with the Commission as soon as practicable after the Closing
Date, but in no event later than 60 days after the Closing Date, an Exchange
Offer Registration Statement relating to the Series B Senior Preferred Stock and
the Exchange Offer, (ii) use its best efforts to cause such Exchange Offer
Registration Statement to become effective at the earliest possible time, but in
no event later than 120 days after the Closing Date, (iii) in connection with
the foregoing, file (A) all pre-effective amendments to such Exchange Offer
Registration Statement as may be necessary in order to cause such Exchange Offer
Registration Statement to become effective, (B) if applicable, a post-effective
amendment to such Exchange Offer Registration Statement pursuant to Rule 430A
under the Securities Act and (C) all filings in connection with the registration
and qualification of the Series B Senior Preferred Stock as are necessary under
the Blue Sky laws of such jurisdictions in order to permit Consummation of the
Exchange Offer, and (iv) upon the effectiveness of such Registration Statement,
use its best efforts to issue on or prior to 150 days after the Closing Date
(the "Exchange Offer Effectiveness Date") Series B Senior Preferred Stock in
exchange for all Series A Senior Preferred Stock tendered prior thereto in the
Exchange Offer. The Exchange Offer shall be on the appropriate form permitting
registration of the Series B Senior Preferred Stock 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) Holdings 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. Holdings shall cause the
Exchange Offer to comply with all applicable federal and state securities laws.
No securities other than the Series B Senior Preferred Stock shall be included
in the Exchange Offer Registration Statement. Holdings shall use its 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) Holdings shall indicate in a "Plan of Distribution" section contained
in the Prospectus contained in the Exchange Offer Registration Statement that
any Broker-Dealer who holds Series A Senior Preferred Stock 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 Holdings), may exchange such Series
A Senior Preferred Stock pursuant to the Exchange Offer; however, such
Broker-Dealer may be deemed to be an "underwriter" within the meaning of the
Securities Act and, consequently, must deliver a prospectus meeting the
requirements of the Securities Act in connection with any resales of the
Series B Senior Preferred Stock received by such Broker-Dealer in the Exchange
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Offer, which prospectus delivery requirement may be satisfied by the delivery by
such Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section shall also contain
all other information with respect to such resales by Broker-Dealers that the
Commission may require in order to permit such resales pursuant thereto, but
such "Plan of Distribution" shall not name any such Broker-Dealer or disclose
the amount of Securities held by any such Broker-Dealer except to the extent
required by the Commission as a result of a change in policy after the date of
this Agreement.
Holdings shall use its reasonable 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 acquired by Broker-Dealers
for their own accounts as a result of market-making activities or other trading
activities, and to ensure that such Exchange Offer Registration Statement
conforms with the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period equal to the shorter of (A) one hundred and eighty (180)
consecutive days after the date the Exchange Offer is Consummated (subject to
the provisions of Section 6(c)(i) below) and (B) the date on which all Transfer
Restricted Securities acquired in the Exchange Offer by Restricted
Broker-Dealers have been sold to the public by such Restricted Broker-Dealers.
In order to facilitate such resales, at any time during such 180-day period
Holdings shall provide to Broker-Dealers, promptly upon request, and in no event
more than five Business Days after any such request, sufficient copies of the
latest version of such Prospectus.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) Holdings is not required to file an
Exchange Offer Registration Statement with respect to the Series B Senior
Preferred Stock or permitted to consummate the Exchange Offer because the
Exchange Offer is not permitted by applicable law (after the procedures set
forth in Section 6(a) below have been complied with) or Commission policy or
(ii) if any Holder of Transfer Restricted Securities shall notify Holdings
within 10 Business Days following Consummation of the Exchange Offer that (A)
such Holder was prohibited by law or Commission policy from participating in the
Exchange Offer, (B) such Holder may not resell the Series B Senior Preferred
Stock acquired by it in the Exchange Offer to the public without delivering a
prospectus and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder, or
(C) such Holder is a Broker-Dealer and holds Series A Senior Preferred Stock
acquired directly from Holdings or one of its affiliates, then Holdings shall
(x) cause to be filed on or prior to (1) in the case of a Registration
Statement filed pursuant to clause (i) above, the earlier to occur of 45 days
after the date on which Holdings determines that it is not required to file
the Exchange Offer Registration Statement or 75 days after the Closing Date
and (2) in the case of a Registration Statement filed pursuant to clause (ii)
above, 45 days after the date on which Holdings receives the notice specified
in clause (ii) above, a shelf registration statement pursuant to Rule 415
under the Securities Act (which may be an amendment to the Exchange Offer
Registration Statement (in either event,
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the "Shelf Registration Statement")), relating to all Transfer Restricted
Securities the Holders of which shall have provided the information required
pursuant to Section 4(b) hereof, and shall
(y) use its reasonable best efforts to cause such Shelf Registration
Statement to become effective on or prior to (1) in the case of a
Registration Statement filed pursuant to clause (i) above, 120 days after the
date on which Holdings becomes obligated to file such Shelf Registration
Statement and (2) in the case of a Registration Statement filed pursuant to
clause (ii) above, 120 days after the date on which Holdings receives the
notice specified in clause (ii) above. If, after Holdings has filed an
Exchange Offer Registration Statement which satisfies the requirements of
Section 3(a) above, Holdings is required to file and make effective a Shelf
Registration Statement solely because the Exchange Offer shall not be
permitted under applicable federal law, then the filing of the Exchange Offer
Registration Statement shall be deemed to satisfy the requirements of clause
(x) above. Such an event shall have no effect on the requirements of clause
(y) above, or on the Effectiveness Target Date as defined in Section 5 below.
Holdings shall use its reasonable 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 for a period of three
years from the effective date thereof (as extended pursuant to Section 6(c)(i)
or such shorter period that will terminate when all Securities are no longer
Transfer Restricted Securities or all Securities covered by such Shelf
Registration Statement have been sold pursuant thereto, and to ensure that such
Shelf Registration Statement conforms with the requirements of this Agreement,
the Securities Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of three years from the effective date
thereof (as extended pursuant to Section 6(c)(i)) or such shorter period that
will terminate when all Securities are no longer Transfer Restricted Securities
or all Securities covered by such Shelf Registration Statement have been sold
pursuant thereto.
(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
Holdings in writing, within 20 Business Days after receipt of a request
therefor, such information as Holdings reasonably may request 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 used its best efforts to provide all such reasonably
requested information. Each Holder as to which any Shelf Registration Statement
is being effected agrees to furnish promptly to Holdings all information
required to be disclosed in order to make the information previously furnished
to Holdings by such Holder not materially misleading.
(c) Restrictions on Sale of Certain Securities by Others. Holdings agrees
not to, and to use its reasonable best efforts to cause its affiliates not to,
offer, sell, contract to sell or grant any option to purchase or otherwise
transfer or dispose of any debt security issued by Holdings or any security
convertible into or exchangeable or exercisable for any such debt security,
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including a sale pursuant to Rule 144 under the Securities Act, during the
30-day period beginning on the closing date of each Underwritten Offering made
pursuant to the Shelf Registration Statement (except as part of such
Underwritten Registration).
SECTION 5. LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by this Agreement are
not filed with the Commission on or prior to the date specified for such filing
in Section 3 or 4 of this Agreement, (ii) any of such Registration Statements
have not been declared effective by the Commission on or prior to the date
specified for such effectiveness in Section 3 or 4 of this Agreement (the
"Effectiveness Target Date"), (iii) the Exchange Offer has not been Consummated
within 30 days of the Effectiveness Target Date with respect to the Exchange
Offer Registration Statement or (iv) subject to the provisions of Section
6(c)(i) below, any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded immediately by a
post-effective amendment to such Registration Statement that cures such failure
and that is itself immediately declared effective (each such event referred to
in clauses (i) through (iv), a "Registration Default"), Holdings hereby agrees
to pay liquidated damages to each Holder of Transfer Restricted Securities,
during the first 90-day period immediately following the occurrence of such
Registration Default, in an amount equal to $.05 per week per $1,000 liquidation
preference of the Transfer Restricted Securities held by such Holder for so long
as the Registration Default continues. The amount of liquidated damages payable
to each Holder shall increase by an additional $.05 per week per $1,000
liquidation preference of Transfer Restricted Securities held by such Holder for
each subsequent 90-day period, up to a maximum amount of liquidated damages of
$.30 per week per $1,000 liquidation preference of Transfer Restricted
Securities held by such Holder. All accrued liquidated damages shall be paid by
Holdings as provided in the Certificate of Designation. 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.
All obligations of Holdings 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, Holdings shall comply with all of the provisions of Section 6(c) below,
shall use its reasonable 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 reasonable opinion of counsel to Holdings there is a
question as to whether the Exchange Offer is permitted by applicable law,
Holdings hereby agrees to seek a no-action letter or other favorable decision
from the Commission allowing Holdings to
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Consummate an Exchange Offer for such Series A Senior Preferred Stock.
Holdings hereby agrees 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. Holdings hereby
agrees, however, (A) to participate in telephonic conferences with the
Commission, (B) to deliver to the Commission staff an analysis prepared by
counsel to Holdings setting forth the legal bases, if any, upon which such
counsel has concluded that such an Exchange Offer should be permitted and (C)
to pursue diligently 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 Holdings, prior to the
Consummation thereof, a written representation to Holdings (which may be
contained in the letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that such Holder (A) is not an
affiliate of Holdings, (B) 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 Senior Preferred Stock to be issued in the
Exchange Offer and (C) is acquiring the Series B Senior Preferred Stock in
its ordinary course of business. Each Holder hereby acknowledges and agrees
(X) 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 Securities Act in connection with a secondary resale
transaction and (Y) 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 Senior Preferred Stock obtained
by such Holder in exchange for Series A Senior Preferred Stock acquired by
such Holder directly from Holdings.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, Holdings shall provide, if requested by the Commission, a
supplemental letter to the Commission (A) stating that Holdings is
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 Holdings has not entered into any arrangement or
understanding with any Person to distribute the Series B Senior Preferred
Stock to be received in the Exchange Offer and that, to the best of Holdings'
information and belief, each Holder participating in the Exchange Offer is
acquiring the Series B Senior Preferred Stock in its ordinary course of
business and has no arrangement or understanding with any Person to
participate in the distribution of the Series B Senior Preferred Stock
received in the Exchange Offer.
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(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, Holdings shall comply with all of the provisions of
Section 6(c) below and shall use its best efforts to effect such registration to
permit the sale of the Transfer Restricted Securities being sold in accordance
with the intended method or methods of distribution thereof, and pursuant
thereto Holdings as expeditiously as possible will prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Securities Act, which form shall be available for the
sale of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof.
(c) General Provisions. In connection with any Registration Statement and
any Prospectus required by this Agreement in order to permit the sale or resale
of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required to permit resales of
Securities by Broker-Dealers), Holdings shall:
(i) use its reasonable best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements 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, Holdings promptly shall file 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
its 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. Notwithstanding the
foregoing, Holdings may suspend the effectiveness of (1) the Registration
Statement relating to the Exchange Offer for up to 10 days during the 180-day
period referred to in Section 3(c) and (2) the Shelf Registration Statement
for up to 30 days in each year during which such Shelf Registration Statement
is required to be effective and usable hereunder (measured from the date of
effectiveness of such Shelf Registration Statement to successive
anniversaries thereof) if (A) either (y)(I) Holdings shall be engaged in a
material acquisition or disposition and (II)(aa) such acquisition or
disposition is required to be disclosed in the Registration Statement, the
related Prospectus or any amendment or supplemental thereto, or the failure
by Holdings to disclose such transaction in the Registration Statement or
related Prospectus, or any amendment or supplemental thereto, as then amended
or supplemented, would cause such Registration Statement, Prospectus or
amendment or supplement thereto, to contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statement therein not misleading, in the light of the circumstances under
with they were made, (bb) information regarding the existence of such
acquisition or disposition has not then been publicly disclosed by or on
behalf of Holdings and (cc) a majority of the Board of Directors of Holdings
determines in the exercise of its good faith judgment that disclosure of such
acquisition or disposition would not be in the best interest of Holdings and
its subsidiaries or would have a material adverse effect on the consummation
of such acquisition or disposition or (z) a majority of the Board of
Directors of Holdings determines in the exercise of its good faith judgment
that compliance with the disclosure obligations set forth in this Section
6(c)(i) would otherwise have a material adverse effect on Holdings and its
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subsidiaries, taken as a whole, and (B) Holdings notifies the Holders within
two Business Days after such Board of Directors makes the relevant
determination set forth in clause (A); provided, however, that in each such
case the applicable period specified in Section 3 and 4 hereof during which
the applicable Registration Statement is required to be kept effective and
usable shall be extended by the number of days during which such
effectiveness was suspended pursuant to the foregoing;
(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 Securities Act, and to comply fully
with the applicable provisions of Rules 424 and 430A under the Securities Act
in a timely manner; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended method
or methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders and, if
requested by such Persons, confirm such advice in writing, (A) when the
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to any Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any request by
the Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Securities Act or of
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 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, Holdings shall use its best efforts to obtain the withdrawal
or lifting of such order at the earliest possible time;
(iv) furnish to the Initial Purchaser, each of the selling Holders
and each of the underwriter(s), if any, before filing with the Commission,
copies of any Registration Statement or any Prospectus included therein or
any amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the
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review of such Holders and underwriter(s), if any, for a period of at least
five Business Days, and Holdings 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 or the underwriter(s), if
any, shall object within five Business Days after the receipt thereof. A
selling Holder or underwriter, if any, shall be deemed to have objected
reasonably to such filing if such Registration Statement, amendment,
Prospectus or supplement, as applicable, as proposed to be filed, contains a
material misstatement or omission or fails to comply with the applicable
requirements of the Securities Act;
(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the selling Holders and to the
underwriter(s), if any, make Holdings' representatives available for
discussion of such document and other customary due diligence matters, and
include such information in such document prior to the filing thereof as such
selling Holders or underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times for inspection by the
selling Holders, any underwriter participating in any disposition pursuant to
such Registration Statement, and any attorney or accountant retained by such
selling Holders or any of the underwriter(s), all financial and other
records, pertinent corporate documents and properties of Holdings and cause
Holdings' officers, directors and employees to supply all information
reasonably requested by any such Holder, underwriter, attorney or accountant
in connection with such Registration Statement subsequent to the filing
thereof and prior to its effectiveness;
(vii) if requested by any selling Holders or the underwriter(s), if
any, promptly incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriter(s), if any, reasonably
may 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 liquidation preference of
Transfer Restricted Securities being sold to any such underwriter(s), the
purchase price being paid therefor and any other terms 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 Holdings is notified of the matters to be incorporated in
such Prospectus supplement or post-effective amendment;
(viii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating agencies, if
so requested by the Holders of a majority in aggregate liquidation preference
of Securities covered thereby or the underwriter(s), if any;
(ix) furnish to each selling Holder and each of the underwriter(s),
if any, without charge, at least one copy of the Registration Statement, as
first filed with the Commission,
11
and of each amendment thereto, including all documents incorporated by
reference therein and all exhibits (including exhibits incorporated therein
by reference);
(x) deliver to each selling Holder and each of the underwriter(s),
if any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; Holdings hereby consents to the use of the
Prospectus and any amendment or supplement thereto by each of the selling
Holders and each of the underwriter(s), if any, in connection with the
offering and the sale of the Transfer Restricted Securities covered by the
Prospectus or any amendment or supplement thereto;
(xi) enter into such agreements (including 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 requested by the Initial Purchaser or by any Holder of Transfer
Restricted Securities or underwriter in connection with any sale or resale
pursuant to any Registration Statement contemplated by this Agreement; and
whether or not an underwriting agreement is entered into and whether or not
the registration is an Underwritten Registration, Holdings shall:
(A) furnish to the Initial Purchaser, each selling Holder and each
underwriter, if any, in such substance and scope as they may request and
as are customarily made by issuers to underwriters in primary underwritten
offerings, upon the date of the Consummation of the Exchange Offer and, if
applicable, upon the effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date of Consummation of the Exchange
Offer or the date of effectiveness of the Shelf Registration Statement,
as the case may be, signed by (x) the Chief Executive Officer or any
Vice President and (y) a principal financial or accounting officer of
Holdings, confirming, as of the date thereof, the matters set forth in
paragraphs (a), (b), (c) and (d) and (e) 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 Holdings covering the matters set
forth in paragraphs (g) and (h) of Section 7 of the Purchase Agreement
and such other matters as the Holders and/or managing underwriter(s)
reasonably may request, and in any event including a statement to the
effect that such counsel has participated in conferences with officers
and other representatives of Holdings, representatives of the
independent public accountants for Holdings, the Initial Purchaser's
representatives and the Initial Purchaser's 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 on the basis of the foregoing (relying upon
facts provided to such counsel by
12
officers and other representatives of Holdings and without independent
check or verification), that 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 re quired 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) customary comfort letters, 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 Holdings' past
and present independent accountants, in the customary form and covering
matters of the type customarily covered in comfort letters to
underwriters in connection with primary underwritten offerings, and
affirming the matters set forth in the comfort letters delivered
pursuant to Section 7(l) of the Purchase Agreement, without exception;
(B) set forth in full or incorporate by reference in the underwriting
agreement, if any, the indemnification provisions and procedures of
Section 8 hereof with respect to all parties to be indemnified pursuant to
said Section; and
(C) deliver such other documents and certificates as reasonably may be
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 Holdings pursuant to this clause (xi), if
any.
The provisions of this clause (A) shall be applicable at each closing
under such underwriting or similar agreement, as and to the extent required
thereunder and, if at any time the representations and warranties of Holdings
contemplated in clause (A)(1) above cease to be true and correct, Holdings
promptly shall so advise the Initial Purchaser and the underwriter(s), if
any, and each selling Holder and, if requested by such Persons, shall confirm
such advice in writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if any,
and their respective counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the securities or
Blue Sky laws of such jurisdictions as the selling Holders or underwriter(s)
may
13
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 Holdings shall not 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;
(xiii) upon the request of any Holder of Series A Senior Preferred
Stock covered by the Shelf Registration Statement, issue Series B Senior
Preferred Stock, having an aggregate liquidation preference equal to the
aggregate liquidation preference of Series A Senior Preferred Stock
surrendered to Holdings by such Holder in exchange therefor or being sold by
such Holder, such Series B Senior Preferred Stock 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 Senior Preferred Stock held by such
Holder shall be surrendered to Holdings for cancellation;
(xiv) cooperate with the selling Holders and the underwriter(s), if
any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends, and enable such Transfer Restricted Securities to be in
such denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two Business Days prior to any
sale of Transfer Restricted Securities made by such underwriter(s);
(xv) use its 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 in order 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 (xii)
above;
(xvi) 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; provided, however, Holdings shall not be required to
comply with this clause (xvi) if, and only for so long as (A) either (l)(y)
Holdings shall be engaged in a material acquisition or disposition and (z)(I)
such acquisition or disposition is required to be disclosed in the
Registration Statement, the related Prospectus or any amendment or supplement
thereto, or the failure by Holdings to disclose such transaction in the
Registration Statement or related Prospectus, or any amendment or supplement
thereto, as then amended or supplemented, would cause such Registration
Statement, Prospectus or amendment or supplement thereto, to contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein no misleading, in the light
of the circumstances under with they were made, (II) information regarding
the existence of such acquisition or disposition has not been
14
publicly disclosed by or on behalf of Holdings and (III) a majority of the
Board of Directors of Holdings determines in the exercise of its good faith
judgment that disclosure of such acquisition or disposition would not be in
the best interests of Holdings and its subsidiaries or would have a material
adverse effect on the consummation of such acquisition or disposition or (2)
a majority of the Board of Directors of Holdings determines in the exercise
of its good faith judgment that compliance with the disclosure obligations
set forth in this clause (xvi) would otherwise have a material adverse effect
on Holdings and its subsidiaries, taken as whole, and (B) Holdings notifies
the Holders within two Business Days after the Board of Directors makes the
relevant determination set forth in clause (A); provided, however, that in
each such case the period specified in Section 3 and 4 hereof during which
the applicable Registration Statement is required to be kept effective and
usable shall be extended by the number of days during which such
effectiveness was suspended pursuant to the foregoing;
(xvii) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of the Registration Statement, and provide
the transfer agent and registrar with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the
Depository Trust Company;
(xviii) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of the
NASD, and use its 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;
(xix) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which need not be
audited) for the twelve-month period (A) commencing at the end of any fiscal
quarter in which Transfer Restricted Securities are sold to underwriters in a
firm or best efforts Underwritten Offering or (B) if not sold to underwriters
in such an offering, beginning with the first month of Holdings' first fiscal
quarter commencing after the effective date of the Registration Statement;
(xx) use its reasonable best efforts to cause all Transfer
Restricted Securities covered by the Registration Statement to be listed on
each securities exchange on which similar securities issued by Holdings are
then listed if requested by the Holders of a majority of the outstanding
shares or aggregate liquidation preference of Series A Senior Preferred
Stock, or the underwriters, 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 of the Exchange Act.
15
Each Holder agrees by acquisition of a Transfer Restricted Security that,
upon receipt of any notice from Holdings 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)(xvi) hereof,
or until it is advised in writing (the "Advice") by Holdings 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 Holdings, each Holder will deliver to Holdings (at Holdings'
expense) all copies, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Transfer Restricted Securities that
was current at the time of receipt of such notice. In the event Holdings 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)(xvi) hereof or shall have received the
Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to Holdings' performance of or compliance with
this Agreement will be borne by Holdings, regardless of whether a Registration
Statement becomes effective, including without limitation: (i) all registration
and filing fees and expenses (including filings made by the Initial Purchaser or
Holder with the NASD (and, if applicable, the fees and expenses of any
"qualified independent underwriter" and its counsel that may be required by the
rules and regulations of the NASD)); (ii) all fees and expenses of compliance
with federal securities and state Blue Sky or securities laws; (iii) all
expenses of printing (including printing certificates for the Series B Senior
Preferred Stock 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 Holdings and, subject to Section 7(b) below, the
Holders of Transfer Restricted Securities; (v) all application and filing fees
in connection with listing Securities on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and (vi) all
fees and disbursements of independent certified public accountants of Holdings
(including the expenses of any special audit and comfort letters required by or
incident to such performance).
Holdings will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by
Holdings.
(b) Holdings will reimburse the Initial Purchaser and the Holders for the
reasonable fees and disbursements of Xxxxxxx Xxxxxxx & Xxxxxxxx, acting for the
Initial Purchaser or Holders in connection with the offer and sale of the
Securities pursuant to each Registration Statement.
16
SECTION 8. INDEMNIFICATION
(a) Holdings agrees to indemnify and hold harmless (i) each Holder and
(ii) each person, if any, who controls (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) any Holder (any of the persons
referred to in this clause (ii) being hereinafter referred to as a "controlling
person") and (iii) the respective officers, directors, partners, employees,
representatives and agents of each Holder and each controlling person (any
person referred to in clause (i), (ii) or (iii) may hereinafter be referred to
as an "Indemnified Holder") to the fullest extent lawful, from and against any
and all losses, claims, damages, judgments, actions and other liabilities
(collectively, "Liabilities"), and will reimburse each Indemnified Holder for
all fees and expenses (including, without limitation, the reasonable fees and
expenses of counsel to any Indemnified Holder) (collectively, "Expenses") as
they are incurred in investigating, preparing, pursuing or defending any claim
or action, or any proceeding or investigation by any governmental agency or
body, whether or not in connection with pending or threatened litigation and
whether or not any Indemnified Holder is a party (collectively, "Actions"),
directly or indirectly caused by, related to, based upon, arising out of or in
connection with any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement, preliminary Prospectus or
Prospectus (including any amendments thereof and supplements thereto), or by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as such
Liabilities or Expenses are caused by an untrue statement or omission or alleged
untrue statement or omission (i) that is made in reliance upon and in conformity
with information relating to an Indemnified Holder furnished in writing to
Holdings by such Indemnified Holder expressly for use therein or (ii) that is
made in any preliminary Prospectus if a copy of the final Prospectus (as then
amended or supplemented) was not sent or given by or on behalf of the Holder to
the person asserting any such loss, claim, damage, liability or expense, if
required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Securities and the final prospectus (as then
amended or supplemented) would have corrected such untrue statement or omission.
Holdings also agrees to reimburse each Indemnified Holder for all Expenses as
incurred in connection with enforcing such Indemnified Holder's rights under
this Agreement (including, without limitation, its rights under this Section 8);
provided, that if either Anvil or Holdings reimburses a Holder hereunder for any
Expenses, such Holder hereby agrees to refund such reimbursement of Expenses to
the extent that the Holder is not entitled to be indemnified hereunder. Holdings
shall notify each Indemnified Holder promptly of the institution, threat or
assertion of any Action in connection with the matters addressed by this
Agreement which involves Holdings or an Indemnified Holder.
Upon receipt by an Indemnified Holder of notice of an Action against such
Indemnified Holder with respect to which indemnity may be sought under this
Section 8, such Indemnified Holder shall promptly notify Holdings in writing;
provided that the failure to so notify Holdings shall not relieve Holdings from
any liability which Holdings may have on account of this indemnity or otherwise,
except to the extent Holdings shall have been materially prejudiced by such
failure. Holdings shall, if requested by such Indemnified Holder, assume the
defense of any such Action, including the employment of counsel reasonably
satisfactory to such Indemnified Holder. Any Indemnified Holder shall have the
right to employ separate counsel
17
in any such action and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Holder,
unless: (i) Holdings has failed promptly to assume the defense and employ
counsel reasonably satisfactory to such Indemnified Holder, (ii) the
indemnifying party has authorized the employment of counsel for such Indemnified
Holder at the expense of the indemnifying party or (iii) the named parties to
any such Action (including any impleaded parties) include such Indemnified
Holder and Holdings , and such Indemnified Holder shall have been advised by
counsel that there may be one or more legal defenses available to it which are
different from or in addition to those available to Holdings ; provided that
Holdings shall not in such event be responsible hereunder for the fees and
expenses of more than one firm of separate counsel in connection with any Action
in the same jurisdiction, in addition to any local counsel. Holdings shall not
be liable for any settlement of any Action effected without its written consent
(which shall not be unreasonably withheld) and Holdings agrees to indemnify and
hold harmless any Indemnified Holder from and against any Liability or Expense
by reason of any settlement of any Action effected with the written consent of
Holdings . Notwithstanding the immediately preceding sentence, if at any time an
Indemnified Holder shall have requested Holdings to reimburse the Indemnified
Holder for fees and expenses of counsel as contemplated by the third sentence of
this paragraph, Holdings agrees that it shall be liable for any settlement of
any proceeding effected without its written consent if (i) such settlement is
entered into more than sixty (60) Business Days after receipt by Holdings of the
aforesaid request and (ii) Holdings shall not have reimbursed the Indemnified
Holder in accordance with such request prior to the date of such settlement. In
addition, Holdings will not, without the prior written consent of each
Indemnified Holder, settle any pending or threatened Action in respect of which
indemnification or contribution may be sought hereunder (whether or not any
Indemnified Holder is a party thereto), unless such settlement includes an
unconditional release of such Indemnified Holder from all Liabilities on claims
that are the subject matter of such proceeding.
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless Holdings , and its directors,
officers, and any person controlling (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) Holdings , and the respective
officers, directors, partners, employees, representatives and agents of each
such person, to the same extent as the foregoing indemnity from Holdings to each
of the Indemnified Holders, but only with respect to Liabilities and Expenses
incurred in investigating, preparing, pursuing or defending Actions directly or
indirectly caused by, related to, based upon, arising out of or in connection
with any untrue statement or omission or alleged untrue statement of a material
fact contained in any Registration Statement, preliminary Prospectus or
Prospectus (including any amendments thereof and supplements thereto) that was
made in reliance upon and in conformity with information relating to such Holder
furnished in writing by or on behalf of such Holder expressly for use in any
Registration Statement or Prospectus or any amendment or supplement thereto. In
case any Action shall be brought against Holdings or its directors or officers
or any such controlling person in respect of which indemnity may be sought
against a Holder of Transfer Restricted Securities, such Holder shall have the
rights and duties given Holdings or its directors or officers or such
controlling person shall have the rights and duties given to each Holder by the
preceding paragraph. In no event shall the liability of any selling Holder
hereunder be greater than the amount by which the total proceeds received by
such Holder upon the sale of the Registrable Securities giving rise to such
indemnification
18
obligation exceeds the sum of (A) the amount paid by such Holder for such
Registrable Securities plus (B) the amount of any damages which such Holder has
otherwise been required to pay by reason of a claim or action based on such
information.
(c) If the indemnification provided for in this Section 8 is unavailable
to an indemnified party under Section 8(a) or Section 8(b) hereof (other than by
reason of exceptions provided in those Sections) in respect of any Liabilities
or Expenses referred to therein, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such Liabilities
or Expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by Holdings on the one hand and the Holders on the other hand
from their sale of Transfer Restricted 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 Holdings and of the
Indemnified Holder, as well as any other relevant equitable considerations. The
relative benefits received by Holdings and any Indemnified Holder shall be
deemed to be in the same proportion as (x) the total proceeds from the offering
of the Units consisting of the Series A Preferred Stock and Class B Common Stock
of Holdings (net of discounts but before deducting expenses) received by
Holdings and (y) the total proceeds received by such Indemnified Holder upon its
sale of Transfer Restricted Services which otherwise would give rise to the
indemnification obligation, respectively. The relative fault of Holdings on the
one hand and of the Indemnified Holder on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by Holdings or by the Indemnified Holder and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
Holdings and each Holder of Transfer Restricted Securities agree that it
would not be just and equitable if contribution pursuant to this Section 8(c)
were determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the Liabilities and Expenses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth in
the second paragraph of Section 8(a), any legal or other fees or expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any Action. Notwithstanding any other provision of this Xxxxxxx 0,
xxxx of the Holders (and its related Indemnified Holders) shall be required to
contribute, in the aggregate, an amount in excess of the amount by which the
total proceeds received by such Holder with respect to the sale of its Series A
Senior Preferred Stock giving rise to such Liabilities or Expenses exceeds the
sum of (A) the amount paid by such Holder for such Senior Preferred Stock 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. The Holders'
obligations to contribute pursuant to this Section 8(c) are several in
proportion to the liquidation preference of Series A Senior Preferred
19
Stock held
by each of the Holders hereunder and not joint.
SECTION 9. RULE 144A
Holdings hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding, to make available to any Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
from such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Securities Act in order to effect 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 by the Holders of a majority in
aggregate liquidation preference of the Transfer Restricted Securities included
in such offering; provided that such investment bankers and managers must be
reasonably satisfactory to Holdings.
SECTION 12. MISCELLANEOUS
(a) Remedies. Each Holder, in addition to being entitled to exercise all
rights provided herein, in the Certificate of Designation, the Purchase
Agreement or granted by law, including recovery of liquidated or other damages,
will be entitled to specific performance of its rights under this Agreement.
Holdings agrees that a breach of any of the provisions of this Agreement will
cause irreparable injury to the Holders, that the Holders have no adequate
remedy by law in respect of such breach and, as a consequence, that each and
every provision contained in this Agreement shall be specifically enforceable
against Holdings, and Holdings hereby waives and agrees not to assert as a
defense to the request or granting of specific performance of any such provision
that any breach of any such provision does not or would not cause irreparable
harm or is or would be compensable by an award of money damages in respect of
such breach.
(b) No Inconsistent Agreements. Holdings will not enter, on or after the
date of this Agreement, into any agreement with respect to its securities that
would be inconsistent with the
20
rights granted to the Holders in this Agreement or otherwise would conflict with
the provisions hereof. Holdings previously has not entered into any agreement
granting any registration rights with respect to its securities to any Person.
The rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent in any way with the rights granted to the holders of
Holdings' securities under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Securities. Holdings will not take any
action, or permit any change to occur, with respect to the Securities 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 Holdings has obtained the written
consent of Holders of a majority of the outstanding liquidation preference of
Transfer Restricted Securities. Notwithstanding the foregoing, the Holders of a
majority of the outstanding liquidation preference of Transfer Restricted
Securities being tendered or registered may give a waiver or consent to
departure from the provisions hereof, which waiver or consent relates
exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and does not directly or indirectly affect the
rights of other Holders whose securities are not being tendered pursuant to such
Exchange Offer.
(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, then at the address set forth on the records of
the transfer agent and registrar, with a copy to the transfer agent and
registrar; and
(ii) if to Holders and Holdings, then:
Anvil Holdings, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
With copies to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxx, Esq.
399 Venture Partners, Inc.
21
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention; Xxxxx X. Xxxxxx
and
Bruckmann, Xxxxxx, Xxxxxxxx & Co., Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
All such notices and communications shall be deemed to have been duly
given as follows: (A) at the time delivered by hand, if personally delivered;
(B) five Business Days after being deposited in the mail, postage prepaid, if
mailed; (C) when answered back, if telexed; (D) when receipt acknowledged, if
telecopied; and (E) 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
delivered concurrently to the Trustee, at the address specified in the
Indenture, by the Person giving the same.
(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
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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 Holdings with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ANVIL HOLDINGS, INC.
By:
------------------------
Name:
Title:
Accepted and agreed to as of
the date first above written:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:
-------------------------
Name:
Title:
