Ex. 4.2
▇▇▇▇▇▇ HOLDINGS, INC.
$20,000,000
12% Senior Subordinated Notes due 2008
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
March 25, 1997
BT SECURITIES CORPORATION
Bankers Trust Plaza
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇ Holdings, Inc., a Massachusetts corporation (the "Company"), has
outstanding $20,000,000 aggregate principal amount of its 12% Senior
Subordinated Notes due 2008 (the "Notes") a portion of which are being sold to
you today by Invifin S.A., a societe anoyme organized under the laws of
Luxembourg ("Invifin"), upon the terms set forth in a purchase agreement dated
March 19, 1997 (the "Purchase Agreement"). Capitalized terms used but not
specifically defined herein are -defined in the Purchase Agreement. As an
inducement for you to purchase a portion of the Notes from Invifin, to aid in
the formation of an orderly market for the Notes and for other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company agrees with you, for the benefit of the holders of the Notes (the
"Holders"), as follows:
1. Registered Exchange Offer. The Company shall prepare and, not later
than April 30, 1998, shall file with the Commission a registration statement
(the "Exchange Offer Registration Statement") on an appropriate form under the
Securities Act with respect to a proposed offer (the "Registered Exchange
Offer") to the Holders to issue and deliver to such Holders, in exchange for the
Notes, a like aggregate principal amount of debt securities of the Company (the
"Exchange Notes") identical in all material respects to the Notes, except for
the transfer restrictions relating to the Notes, shall use its best efforts to
cause the Exchange Offer Registration Statement to become effective under the
Securities Act not later than June 15, 1998 and shall keep the Exchange Offer
Registration Statement effective for not less than 30 days (or longer, if
required by applicable law) after the date on which notice of the Exchange Offer
is mailed to the Holders (such period being called the "Exchange Offer
Registration Period"). The Exchange Notes will be issued under the Indenture or
an indenture (the "Exchange Notes Indenture") between the Company and the
Trustee or such other bank or trust company reasonably satisfactory to you, as
trustee (the "Exchange Notes Trustee") , such indenture to be identical in all
material respects with the Indenture except for the transfer restrictions
relating to the Notes (as described above).
Upon the effectiveness of the Exchange Offer Registration Statement, the
Company shall promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder electing to
exchange Notes for Exchange Notes (assuming that such Holder is not an affiliate
of the Company within the meaning of the Securities Act, acquires the Exchange
Notes in the ordinary course of such Holder's business and has no arrangements
with any person to participate in the distribution of the Exchange Notes) to
trade such Exchange Notes from and after their receipt without any limitations
or restrictions under the Securities Act and without material restrictions under
the securities laws of the several states of the United States. The Company
acknowledges that, pursuant to current interpretations by the Commission's staff
of Section 5 of the Securities Act, each Holder that is a broker-dealer electing
to exchange Notes, acquired for its own -account as a result of market making
activities or other trading activities, for Exchange Notes (an "Exchanging
Dealer"), is required to deliver a prospectus containing the information set
forth in Annex A hereto on the cover, in Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section, and in
Annex C hereto in the "Plan of Distribution" section of such prospectus in
connection with a sale of any such Exchange Notes received by such Exchanging
Dealer pursuant to the Registered Exchange Offer.
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30
days after the date notice thereof is mailed to the Holders (or longer if
required by applicable law) ;
(c) utilize the services of a Depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
(d) 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
Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer,
the Company shall:
(a) accept for exchange all Notes tendered and not validly withdrawn
pursuant to the Registered Exchange Offer;
(b) deliver to the Trustee for cancellation all Notes so accepted
for exchange; and
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(c) cause the Trustee or the Exchange Notes Trustee, as the case may
be, promptly to authenticate and deliver to each Holder of Notes, Exchange Notes
equal in principal amount to the Notes of such Holder so accepted for exchange.
Interest on each Exchange Security issued pursuant to the Registered
Exchange Offer will accrue from the last interest payment date on which interest
was paid on the Notes surrendered in exchange therefor or, if no interest has
been paid on the Notes, from the date of original issue of the Notes.
The Company may require each holder of Notes participating in the
Registered Exchange Offer to represent to the Company that at the time of the
consummation of the Registered Exchange Offer (i) any Exchange Notes received by
such holder will be acquired in the ordinary course of business, (ii) such
holder will have no arrangements or understanding with any person to participate
in the distribution of the Notes or the Exchange Notes within the meaning of the
Securities Act and (iii) such holder is not an affiliate of the Company within
the meaning of the Securities Act.
Notwithstanding any other provisions hereof, the Company will ensure that
(i) any Exchange Offer Registration Statement and any amendment thereto and any
prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations
thereunder, (ii) any Exchange Offer Registration Statement and any amendment
thereto does not, when it becomes effective, 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 not misleading and (iii) any prospectus
forming part of any Exchange Offer Registration Statement, and any supplement to
such prospectus, does not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements, in the light
of the circumstances under which they were made, not misleading.
If, prior to consummation of the Registered Exchange Offer, you hold any
Notes acquired by you and having, or which are reasonably likely to be
determined to have, the status of an unsold allotment in the distribution of
such Notes, the Company upon your request simultaneously with the delivery of
the Exchange Notes in the Registered Exchange Offer, will issue and deliver to
you in exchange (the "Private Exchange") for such Notes a like principal amount
of debt securities of the Company that are identical in all material respects to
the Exchange Notes, except that they will continue to bear a legend regarding
transfer restrictions (the "Private Exchange Notes") (and which are issued
pursuant to the Exchange Notes Indenture). The Private Exchange Notes shall bear
the same CUSIP number as the Exchange Notes. The Exchange Notes Indenture shall
provide that the Exchange Notes and the Private Exchange Notes shall vote and
consent together on all matters as one class and that neither the Exchange Notes
nor the Private Exchange Notes will have the right to vote or consent as a
separate class on any matter.
2. Shelf Registration. If, because of any change in law or applicable
interpretations thereof by the Commission's staff, the Company determines that
it is not permitted to effect the Registered Exchange Offer as contemplated by
Section 1 hereof, or if for any other reason the
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Registered Exchange Offer is not consummated on or prior to July 15, 1998, or if
you so request with respect to Private Exchange Notes or if any Holder (other
than an Exchanging Dealer) is not eligible to participate in the Registered
Exchange Offer or, in the case of any Holder that participates in the Registered
Exchange Offer (other than an Exchanging Dealer) , does not receive freely
tradeable Exchange Notes in exchange for tendered Notes or if the Company so
elects, the following provisions shall apply:
(a) The Company shall as promptly as practicable file with the
Commission and thereafter shall use its best efforts to cause to be
declared effective a registration statement on an appropriate form under
the Securities Act relating to the offer and sale of the Transfer
Restricted Notes (as defined below) by the Holders from time to time in
accordance with the methods of distribution elected by such Holders and
set forth in such registration statement (hereafter, a "Shelf Registration
Statement" and, together with any Exchange Offer Registration Statement, a
"Registration Statement").
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
prospectus forming part thereof to be usable by Holders for a period of
two years from the date the Shelf Registration Statement is declared
effective by the Commission or such shorter period that will terminate
when all the Notes covered by the Shelf Registration Statement have been
sold pursuant to the Registration Statement (in any such case, such period
being called the "Shelf Registration Period"). The Company shall be deemed
not to have used its best efforts to keep the Shelf Registration Statement
effective during the requisite period if it voluntarily takes any action
that would result in Holders of Notes covered thereby not being able to
offer and sell such Notes during that period, unless (i) such action is
required by applicable law, or (ii) such action is taken 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 thereafter comply with the
requirements of Section 4(j) hereof, if applicable.
(c) Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Shelf Registration Statement and any amendment thereto
and any prospectus forming part thereof and any supplement thereto
complies in all material respects with the Securities Act and the rules
and regulations thereunder, (ii) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, 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 not
misleading and (iii) any prospectus forming part of any Shelf Registration
Statement, and any supplement to such prospectus, does not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading.
3. Liquidated Damages. (a) The parties hereto agree that the Holders of
Notes will suffer damages if the Company fails to fulfill its obligations under
Section 1 or Section 2, as applicable, and that it would not be feasible to
ascertain the extent of such damages.
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Accordingly, if (i) the applicable Registration Statement is not filed with the
Commission on or prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) the Exchange Offer Registration
Statement or, as the case may be, the Shelf Registration Statement, is not
declared effective prior to June 15, 1998, (iii) the Exchange Offer is not
consummated on or prior to July 15, 1998, or (iv) the Shelf Registration
Statement is filed and declared effective prior to June 15, 1998 but shall
thereafter cease to be effective (at any time that the Company is obligated to
maintain the effectiveness thereof) without being succeeded within 30 days by an
additional Registration Statement filed and declared effective (each such event
referred to in clauses (i) through (iv), a "Registration Default") , the Company
will pay liquidated damages to each holder of Transfer Restricted Notes (as
defined below) , during the period of such Registration Default, in an amount
equal to $0.192 per week (calculated on a pro forma basis) per $1,000 principal
amount of the Notes constituting Transfer Restricted Notes held by such holder
until the applicable Registration Statement is -filed or declared effective, the
Exchange Offer is consummated or the Shelf Registration Statement again becomes
effective, as the case may be. Following the cure of all Registration Defaults,
the accrual of liquidated damages will cease. "Transfer Restricted Notes" means
each Security until (i) the date on which such Security has been exchanged for a
freely transferable Exchange Note in the Exchange Offer, (ii) the date on which
such Security has been effectively registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement or (iii) the
date on which such Security is distributed to the public pursuant to Rule 144
under the Securities Act or is salable pursuant to Rule 144(k) under the
Securities Act.
(b) The Company shall notify the Trustee and Paying Agent under the
Indenture immediately upon the happening of each and every Registration Default.
The Company shall pay the liquidated damages due on the Transfer Restricted
Notes by depositing with the Paying Agent, in trust, for the benefit of the
Holders thereof, prior to 10:00 a.m. New York City time on the next interest
payment date specified by the Indenture and the Notes, sums sufficient to pay
the liquidated damages then due. The liquidated damages due shall be payable on
each interest payment date specified by the Indenture to the record holder
entitled to receive the interest payment to be made on such date. Each
obligation to pay liquidated damages shall be deemed to accrue from and
including the applicable Registration Default.
(c) The parties hereto agree that the liquidated damages provided
for in this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by holders of Transfer
Restricted Notes by reason of the failure of the Shelf Registration, or the
Exchange Offer, to be filed, to be declared effective, to be consummated or to
remain effective, as the case may be, to the extent required by this Agreement.
4. Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration
Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to you, prior to the filing
thereof with the Commission, a copy of the Registration Statement and each
amendment thereof and each supplement, if any, to the prospectus included
therein and, in the event that you (with respect to any portion of an
unsold allotment from the original offering) is participating in
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the Registered Exchange Offer or the Shelf Registration, shall use its
best efforts to reflect in each such document, when so filed with the
Commission, such comments as you reasonably may propose; (ii) include the
information set forth in Annex A hereto on the cover, in Annex B hereto in
the "Exchange Offer Procedures" section and the "Purpose of the Exchange
Offer" section and in Annex C hereto in the "Plan of Distribution" section
of the prospectus forming a part of the Exchange Offer Registration
Statement, and include the information set forth in Annex D hereto in the
Letter of Transmittal delivered pursuant to the Registered Exchange Offer;
and (iii) if requested by you, include the information required by Items
507 and/or 508 of Regulation S-K under the Securities Act, as applicable,
in the prospectus forming a part of the Exchange Offer Registration
Statement.
(b) The Company shall advise you and the Holders (if applicable),
and, if requested by you or any such Holder, confirm such advice in
writing (which advice pursuant to clauses (ii) - (v) hereof shall be
accompanied by an instruction to suspend the use of the prospectus until
the requisite changes have been made) :
(i) when the Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration
Statement or any posteffective amendment thereto has become
effective;
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes for sale
in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the happening of any event that requires the making of
any changes in the Registration Statement or the prospectus so that,
as of such date, the statements therein are not misleading and do
not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(c) The Company will make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement at the earliest possible time.
(d) The Company will furnish to each Holder of Notes included within
the coverage of any Shelf Registration Statement, without charge, at least
one copy of such Shelf Registration Statement and any post-effective
amendment thereto, including
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financial statements and schedules, and, if the Holder so requests in
writing, all exhibits (including those incorporated by reference).
(e) The Company will deliver to each Holder of Notes included within
the coverage of any Shelf Registration Statement, without charge, as many
copies of the prospectus (including each preliminary prospectus) included
in such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request; and the Company consents to
the use of the prospectus or any amendment or supplement thereto by each
of the selling Holders of Notes in connection with the offering and sale
of the Notes covered by the prospectus or any amendment or supplement
thereto.
(f) The Company will furnish to each Exchanging Dealer or you, as
applicable, that so requests, without charge, at least one copy of the
Exchange Offer Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the
Exchanging Dealer or you, as applicable, so requests in writing, all
exhibits (including those incorporated by reference).
(g) The Company will, during the Exchange Offer Registration Period
and/or the Shelf Registration Period, as applicable, promptly deliver to
each Exchanging Dealer or you, as applicable, without charge, as many
copies of the prospectus included in such Exchange Offer Registration
Statement and any amendment or supplement thereto as such Exchanging
Dealer or you, as applicable, may reasonably request for delivery by (i)
such Exchanging Dealer in connection with a sale of Exchange Notes
received pursuant to the Registered Exchange Offer or (ii) you in
connection with a sale of Exchange Notes received in exchange for Notes
constituting any portion of an unsold allotment; and the Company consents
to the use of the prospectus or any amendment or supplement thereto by any
such Exchanging Dealer or you, as applicable, as aforesaid.
(h) Prior to any public offering of Notes pursuant to any
Registration Statement, the Company will use its reasonable best efforts
to register or qualify or cooperate with the Holders of Notes included
therein and their respective counsel in connection with the registration
or qualification of such Notes for offer and sale under the securities or
blue sky laws of such jurisdictions as any such Holder reasonably requests
in writing and do any and all other acts or things necessary or advisable
to enable the offer and sale in such jurisdictions of the Notes covered by
such Shelf Registration Statement; Provided, however, that the Company
will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which
would subject it to general service of process or to taxation in any such
jurisdiction where it is not then so subject.
(i) The Company will cooperate with the Holders of Notes to
facilitate the timely preparation and delivery of certificates
representing Notes to be sold pursuant to any Registration Statement free
of any restrictive legends and in such denominations and
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registered in such names as Holders may request prior to sales of Notes
pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraphs (b)
(ii) through (v) above during the period for which the Company is required
to maintain an effective Registration Statement, the Company will promptly
prepare a post-effective amendment to the Registration Statement or a
supplement to the related prospectus or file any other required document
so that, as thereafter delivered to purchasers of the Notes or purchasers
of Exchange Notes from an Exchanging Dealer or you, as applicable, as
contemplated in paragraph (g) above, as applicable, the prospectus will
not include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(k) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Notes or
Exchange Notes, as the case may be, and provide the applicable trustee
with printed certificates for the Notes or Exchange Notes, as the case may
be, in a form eligible for deposit with The Depositary Trust Company.
(l) The Company will comply with all applicable rules and
regulations of the Commission and will make generally available to its
security holders as soon as practicable after the effective date of the
applicable Registration Statement an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act.
(m) The Company will cause the Indenture or the Exchange Notes
Indenture, as the case may be, to be qualified under the Trust Indenture
Act as required by applicable law in a timely manner.
(n) The Company may require each Holder of Notes to be sold pursuant
to any Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of such Notes as the
Company may from time to time reasonably require for inclusion in such
Registration Statement, and the Company may exclude from such registration
the Notes of any Holder that unreasonably fails to furnish such
information within a reasonable period of time after receiving such
request and such holder will not be entitled to benefit from the
provisions regarding liquidated damages set forth herein.
(o) The Company shall enter into such customary agreements
(including if requested an underwriting agreement in customary form) and
take all such other action, if any, as Holders of a majority in aggregate
principal amount of Notes being sold or the managing underwriters (if any)
shall reasonably request in order to facilitate the disposition of Notes
pursuant to any Shelf Registration Statement.
(p) In the case of a Shelf Registration Statement, the Company shall
(i) make reasonably available for inspection by a representative of, and
special counsel acting for,
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the Holders, and any underwriter participating in any disposition pursuant
to a Shelf Registration Statement, all relevant financial and other
records, pertinent corporate documents and properties of the Company and
(ii) cause its officers, directors and employees to supply all relevant
information reasonably requested by such representative, counsel or any
such underwriter (an "Inspector") in connection with any such Registration
Statement, subject to executing a confidentiality undertaking in customary
form with respect to confidential and/or proprietary information of the
Company.
(q) In the case of a Shelf Registration Statement, the Company, if
requested by Holders of a majority in aggregate principal amount, their
special counsel, or the managing underwriters (if any) in connection with
any Shelf Registration Statement, shall use its best efforts to cause (w)
its counsel to deliver an opinion relating to the Registration Statement
and the Notes or the Exchange Notes, as applicable, in customary form, (x)
its officers to execute and deliver all customary documents and
certificates requested by Holders of a majority in aggregate principal
amount, their special counsel, or the managing underwriters (if any) and
(y) its independent public accountants to provide a comfort letter in
customary form, subject to receipt of appropriate documentation as
contemplated, and only if permitted by, Statement of Auditing Standards
No. 72.
(r) The Company will use its best efforts to cause the Notes or the
Exchange Notes, as applicable, covered by a Registration Statement to be
rated with the appropriate rating agencies, if so requested by Holders of
a majority in aggregate principal amount of Notes covered by such
Registration Statement or, the Exchange Notes, as the case may be, or the
managing underwriters, if any.
(s) The Company will use its best efforts to cause the Notes or the
Exchange Notes, as applicable, covered by such Registration Statement to
be listed on each securities exchange, if any, on which debt securities
issued by the Company are then listed, if so requested by Holders of a
majority in aggregate principal amount of Notes covered by such
Registration Statement or the Exchange Notes, as the case may be, or the
managing underwriters, if any.
(t) In the case of a Shelf Registration Statement, each Holder of
Notes agrees by acquisition of such Notes that, upon receipt of any notice
of the Company pursuant to Section 4(b) (ii) through (v) hereof, such
Holder will discontinue disposition of such Notes covered by such
Registration Statement until such Holder's receipt of copies of the
supplemental or amended Prospectus contemplated by Section 4(j) hereof, or
until advised in writing (the "Advice") by the Company that the use of the
applicable Prospectus may be resumed. If the Company shall give any notice
under Section 4(b) (ii) through (v) during the period that the Company is
required to maintain an effective Registration Statement (the
"Effectiveness Period") , such Effectiveness Period shall be extended by
the number of days during such period from and including the date of the
giving of such notice to and including the date when each seller of Notes
covered by such Registration Statement shall have received (x) the copies
of the supplemental or amended
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Prospectus contemplated by Section 4(j) (if an amended or supplemental
Prospectus is required) or (y) the Advice (if no amended or supplemental
Prospectus is required).
5. Registration Expenses. The Company will bear all expenses incurred in
connection with the performance of its obligations under Sections 1, 2, 3 and 4
hereof and will reimburse you and/or the Holders for the reasonable fees and
disbursements of one firm of attorneys (in addition to local counsel) chosen by
the Holders of a majority in aggregate principal amount of the Notes (the
"Special Counsel") acting for you and/or the Holders in connection therewith.
6. Indemnification. (a) In the event of a Shelf Registration Statement or
in connection with any prospectus delivery pursuant to an Exchange Offer
Registration Statement by an Exchanging Dealer or you, as applicable, as
contemplated in Section 4 (g) above, the Company shall indemnify and hold
harmless each Holder and each person, if any, who controls such Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any such Registration
Statement or any prospectus forming part thereof or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; and
(ii) against any and all expense whatsoever, as incurred (including,
subject to Section 6(c) hereof, the fees and disbursements of counsel
chosen by the indemnified party), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental or regulatory agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission;
provided, however, that (i) this indemnity shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
indemnified party expressly for use in such Registration Statement and (ii) this
indemnity with respect to any untrue statement or alleged untrue statement or
omission or alleged omission in any related preliminary prospectus shall not
enure to the benefit of any indemnified party from whom the person asserting any
such loss, claim damage or liability received Notes if such persons did not
receive a copy of the final prospectus at or prior to the confirmation of the
sale of such Notes to such person in any case where such delivery is required by
the Securities Act and the untrue statement or omission of material fact
contained in the related preliminary prospectus was corrected in the final
prospectus unless such failure to deliver the final prospectus was a result of
noncompliance by the Company with Sections 4(d), 4(e), 4(f) or 4(g).
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(b) In the event of a Shelf Registration Statement, each Holder
agrees to indemnify and hold harmless the Company, its directors, officers,
agents and employees and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act and the directors, officers, agents and employees of such controlling
persons against any and all loss, liability, claim, damage and expense described
in the indemnity contained in Section 6(a) hereof, as incurred, arising out of
or based upon any untrue statements or omissions, or alleged untrue statements
or omissions, made in the Registration Statement (or any amendment or supplement
thereto) in reliance on and in conformity with written information furnished to
the Company by such Holder expressly for use in the Registration Statement (or
in such amendment or supplement) ; provided, however, that no such Holder shall
be liable for any indemnity claims hereunder in excess of the amount of net
proceeds received by such Holder from the sale of Notes pursuant to the
Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any claim or action
commenced against it in respect of which -indemnity may be sought hereunder,
provided, that failure to so notify an indemnifying party shall not relieve such
indemnifying party from any obligation that it may have pursuant to this Section
except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure and, provided
further that the failure to notify the indemnifying party shall not relieve it
from any liability that it may have to an indemnified party otherwise than on
account of this indemnity agreement. If any such claim or action shall be
brought against an indemnified party, the indemnified party shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof (other than reasonable costs of investigation) ; provided, however, that
an indemnified party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel will be at the
expense of such indemnified party unless (1) the employment of counsel by the
indemnified party has been authorized in writing by the indemnified party, (2)
the indemnified party has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party,
(3) a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate
firm of attorneys (in addition to any local counsel) at any one time for all
such indemnified party or
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parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 6(a) -and 6 (b) , shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld) , but if settled with its written consent or if there be
a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If a claim by an indemnified party for indemnification under
this Section 6 is found unenforceable in a final judgment by a court of
competent jurisdiction (not subject to further appeal or review) even though the
express provisions hereof provide for indemnification in such case, 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 losses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified party in connection
with the actions, statements or omissions that resulted in such losses as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or relates to information supplied by,
such indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any losses shall be deemed to include, subject to the limitations set forth
in Section 6(c) herein, any legal or other fees or expenses reasonably incurred
by such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section, an indemnifying party that is a
holder of Transfer Restricted Notes or Exchange Notes shall not be required to
contribute any amount in excess of the amount by which the total price at which
the securities sold by such indemnifying party and distributed to the public
were offered to the public exceeds the amount of any damages that such
indemnifying party 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 any contribution from any person who was
not guilty of such fraudulent misrepresentation.
7. Rules 144 and 144A. The Company shall use its best efforts to file the
reports required to be filed by it under the Securities Act and the Exchange Act
in a timely manner and, if at any time the Company is not required to file such
reports, it will, upon the request of any holder of Transfer Restricted Notes,
make publicly available other information so long as necessary to permit sales
of its securities pursuant to Rules 144 and 144A. The Company
12
covenants that it will take such further action as any holder of Transfer
Restricted Notes may reasonably request, all to the extent required from time to
time to enable such holder to sell Transfer Restricted Notes without
registration under the Securities Act within the limitation of the exemptions
provided by Rules 144 and 144A (including, without limitation, the requirements
of Rule 144A(d) (4)). Upon the request of any holder of Transfer Restricted
Notes, the Company shall deliver to such holder a written statement as to
whether the Company has complied with such requirements. Notwithstanding the
foregoing, nothing in this Section 7 shall be deemed to require the Company to
register any of its securities pursuant to the Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted 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
administer the offering will be selected by the holders of a majority in
aggregate principal amount of such Transfer Restricted Notes included in such
offering, subject to the consent of the Company (which shall not be unreasonably
withheld or delayed).
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted Notes on
the basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
9. Miscellaneous.
(a) 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, unless the Company has obtained the
written consent of Holders of a majority in aggregate principal amount of the
Notes. Notwithstanding the foregoing, a waiver or con-sent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of the Holders of Notes whose Notes are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of a majority in aggregate
principal amount of the Notes being sold by such Holders pursuant to such
Registration Statement.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 9(b),
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Indenture, with a copy
in like manner to ET Securities Corporation;
(2) if to you, initially at your address set forth in the Purchase
Agreement; and
13
(3) if to the Company, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being delivered to a next-day air courier; five business days after being
deposited in the mail; when answered back, if faxed; and when receipt is
acknowledged by the recipient's telecopier machine, if telecopied.
(c) Successors And Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
(d) 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.
(e) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law; Submission to Jurisdiction: Waiver of Jury Trial.
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 WITHIN
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE
COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW,
TRIAL BY JURY AND ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF ANY HOLDER OF A TRANSFER RESTRICTED SECURITY TO SERVE PROCESS IN ANY
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
(g) Remedies. In the event of a breach by the Company, or by a holder of
Transfer Restricted Notes, of any of their obligations under this Agreement,
each holder of Transfer Restricted Notes or the Company, as the case may be, in
addition to being entitled to exercise all
14
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company and each
holder of Transfer Restricted Notes agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby further agrees that, in the event
of any action for specific performance in respect of such breach, it shall waive
the defense that a remedy at law would be adequate.
(h) No Inconsistent Agreements. The Company has not, nor shall the Company
on or after the date of this Agreement, enter into any agreement that is
inconsistent with the rights granted to the holders of Transfer Restricted Notes
in this Agreement or otherwise conflicts with the provisions hereof. The Company
has not previously entered into any agreement granting any registration rights
with respect to any of its debt securities to any person. Without limiting the
generality of the foregoing, without the written consent of the holders of a
majority in aggregate principal amount of the then outstanding Transfer
Restricted Notes, the Company shall not grant to any person the right to request
the Company to register any debt securities of the Company under the Securities
Act unless the rights so granted are subject in all respects to the prior rights
of the holders of Transfer Restricted Notes set forth herein, and are not
otherwise in conflict or inconsistent with the provisions of the Agreement.
(i) No Piggyback on Registrations. Neither the Company nor any of its
respective securityholders (other than the holders of Transfer Restricted Notes
in such capacity) shall have the right to include any securities of the Company
in any Shelf Registration or Exchange Offer other than Transfer Restricted
Notes.
(j) Severability The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable 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.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
▇▇▇▇▇▇ HOLDINGS, INC.
By: /s/
------------------------------
Name:
Title:
15
Accepted in New York, New York
BT SECURITIES CORPORATION
By: /s/
---------------------------------
Name :
Title:
16
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Existing Notes where
such Existing Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 90 days after the Expiration Date (as defined herein) , it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
17
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Existing Notes, where such Existing Notes were acquired by such
broker-dealer as a result of marketmaking activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See Plan of Distribution."
18
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Existing Notes where such Existing Notes were acquired as a result
of market-making activities or other trading activities. The Company has agreed
that, for a period of 90 days after the Expiration Date, it will make this
prospectus, as amended or supplemented, available to any broker-dealer for use
in connection with any such resale. In addition, until November 25, 1999, all
dealers effecting transactions in the Exchange Notes may be required to deliver
a prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange Notes
by broker-dealers. Exchange Notes received by broker-dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Notes or a combination of such
methods of resale, at market -prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such Exchange Notes. Any
broker-dealer that resells Exchange Notes that were received by it for its own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Notes may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit on any
such resale of Exchange Notes and any commission or concessions received by any
such persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that, by acknowledging that it will
deliver and by delivering a prospectus, a broker-dealer will not be deemed to
admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of 90 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
Holders of the Notes) other than commissions or concessions of any brokers or
dealers
----------
(1) In addition, the legend required by Item 502 (a) of Regulation S-K
will appear on the back cover page of the Exchange Offer prospectus.
19
and will indemnify the Holders of the Notes (including any broker-dealers)
against certain liabilities, including liabilities under the Securities Act.
20
ANNEX D
|_| CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name : _______________________________________________________________
Address : ____________________________________________________________
______________________________________________________________________
______________________________________________________________________
If the undersigned is not a broker-dealer, the undersigned represents that
it is not engaged in, and does not intend to engage in, a distribution of
Exchange Notes. If the undersigned is a broker-dealer that will receive Exchange
Notes for its own account in exchange for Existing Notes that were acquired as a
result of market-making activities of other trading activities, it acknowledges
that it will deliver a prospectus in connection with any resale of such Exchange
Notes; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
21