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EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
Dated as of May 9, 1997
among
COLORADO PRIME CORPORATION,
THE SUBSIDIARY GUARANTORS NAMED HEREIN,
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
NATWEST CAPITAL MARKETS LIMITED
and
DRESDNER KLEINWORT ▇▇▇▇▇▇
NORTH AMERICA LLC
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of May
9, 1997, by and among COLORADO PRIME CORPORATION, a corporation formed under the
laws of the State of Delaware (the "Company"), the Subsidiary Guarantors listed
on Schedule I hereto (together with any future subsidiaries which shall become
party hereto pursuant to Section 10(m), the "Subsidiary Guarantors"), ▇.▇.
▇▇▇▇▇▇ SECURITIES INC., NATWEST CAPITAL MARKETS LIMITED and DRESDNER KLEINWORT
▇▇▇▇▇▇ NORTH AMERICA LLC (collectively, the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of May 6, 1997, among the Company, Colorado Prime Holdings,
Inc. ("CPH"), the Subsidiary Guarantors and the Initial Purchasers (the
"Purchase Agreement") relating to the sale by the Company to the Initial
Purchasers, severally, of 100,000 Units (the "Units") consisting in the
aggregate of $100,000,000 aggregate principal amount of the Company's 12.50%
Senior Notes due 2004 (the "Notes") and Warrants (the "Warrants") to purchase
19,608 shares of common stock, par value $0.01 per share, of CPH. In order to
induce the Initial Purchasers to enter into the Purchase Agreement, the Company
has agreed to provide the registration rights set forth in this Agreement for
the equal benefit of both of the Initial Purchasers and their direct and
indirect transferees. The execution and delivery of this Agreement is a
condition to the Initial Purchasers' obligation to purchase the Notes under the
Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
"ADDITIONAL INTEREST": See Section 4(a).
"ADVICE": See Section 5.
"APPLICABLE PERIOD": See Section 2(b).
"COMPANY": See the introductory paragraph to this Agreement.
"CONSUMMATION DATE": The 165th day after the Issue Date.
"EFFECTIVENESS DATE": The 135th day after the Issue Date.
"EFFECTIVENESS PERIOD": See Section 3(a).
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"EVENT DATE": See Section 4(b).
"EXCHANGE ACT": The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"EXCHANGE OFFER": See Section 2(a).
"EXCHANGE REGISTRATION STATEMENT": See Section 2(a).
"EXCHANGE NOTES": See Section 2(a).
"FILING DATE": The 60th day after the Issue Date.
"HOLDER": Any record holder of Registrable Securities.
"INDEMNIFIED PERSON": See Section 7.
"INDEMNIFYING PERSON": See Section 7.
"INDENTURE": The Indenture, dated as of May 9, 1997, among the Company,
the Subsidiary Guarantors and The Bank of New York, as trustee, pursuant to
which the Notes are being issued, as amended or supplemented from time to time
in accordance with the terms thereof.
"INITIAL PURCHASERS": See the introductory paragraph to this Agreement.
"INITIAL SHELF REGISTRATION": See Section 3(a).
"INSPECTORS": See Section 5(o).
"ISSUE DATE": The original issue date of the Notes.
"NASD": See Section 5(s).
"NOTES": See the preamble to this Agreement.
"PARTICIPANT": See Section 7.
"PARTICIPATING BROKER-DEALER": See Section 2(b).
"PERSON": An individual, corporation, limited or general partnership,
joint venture, limited liability company, association, joint stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
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"PRIVATE EXCHANGE": See Section 2(b).
"PRIVATE EXCHANGE NOTES": See Section 2(b).
"PROSPECTUS": The prospectus included in any Registration Statement
(including, without limitation, a prospectus that includes any information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"RECORDS": See Section 5(o).
"REGISTRABLE SECURITIES": The Notes upon original issuance of the Notes
and at all times subsequent thereto, each Exchange Note as to which Section
2(c)(1)(i) hereof is applicable upon original issuance and at all times
subsequent thereto and, if issued, the Private Exchange Notes, until in the case
of any such Notes, Exchange Notes or Private Exchange Notes, as the case may be,
(i) a Registration Statement (other than, with respect to any Exchange Note as
to which Section 2(c)(1)(i) hereof is applicable, the Exchange Registration
Statement) covering such Notes, Exchange Notes or Private Exchange Notes has
been declared effective by the SEC and such Notes, Exchange Notes or Private
Exchange Notes, as the case may be, have been disposed of in accordance with
such effective Registration Statement, (ii) such Notes, Exchange Notes or
Private Exchange Notes, as the case may be, are sold in compliance with Rule
144, or (iii) such Notes, Exchange Notes or Private Exchange Notes, as the case
may be, cease to be outstanding.
"REGISTRATION STATEMENT": Any registration statement of the Company,
including, but not limited to, the Exchange Registration Statement, that covers
any of the Registrable Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
"RULE 144": Rule 144 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
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subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
"RULE 144A": Rule 144A promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule 144)
or regulation hereafter adopted by the SEC.
"RULE 415": Rule 415 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"SEC": The Securities and Exchange Commission.
"SECURITIES ACT": The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
"SHELF NOTICE": See Section 2(c).
"SHELF REGISTRATION": See Section 3(b).
"SUBSEQUENT SHELF REGISTRATION": See Section 3(b).
"SUSPENSION": See Section 3(a).
"TIA": The Trust Indenture Act of 1939, as amended.
"TRUSTEE": The trustee as defined in the Indenture and the trustee
under any indenture governing the Exchange Notes and Private Exchange Notes (if
any).
"UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING": A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
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2. EXCHANGE OFFER
(a) The Company and the Subsidiary Guarantors agree to file with the
SEC as soon as practicable after the Issue Date, but in no event later than the
Filing Date, an offer to exchange (the "Exchange Offer") any and all of the
Registrable Securities for a like aggregate principal amount of debt securities
of the Company which are identical in all material respects to the Notes (the
"Exchange Notes") and which are entitled to the benefits of the Indenture (which
shall be qualified under the TIA), except that the Exchange Notes shall have
been registered pursuant to an effective Registration Statement under the
Securities Act and shall contain no restrictive legend thereon. The Company and
the Subsidiary Guarantors agree to use their reasonable best efforts to keep the
Exchange Offer open for at least 20 business days (or longer if required by
applicable law) after the date notice of the Exchange Offer is mailed to Holders
and to consummate the Exchange Offer on or prior to the Consummation Date. The
Exchange Offer will be registered under the Securities Act on the appropriate
form (the "Exchange Registration Statement") and will comply with all applicable
rules and regulations under the Exchange Act. Each Holder who participates in
the Exchange Offer will be deemed to represent that any Exchange Notes received
by it will be acquired in the ordinary course of its business, that at the time
of the consummation of the Exchange Offer such Holder will have no arrangement
with any person to participate in the distribution of the Exchange Notes in
violation of the provisions of the Securities Act, and that such Holder is not
an affiliate of the Company within the meaning of the Securities Act. Upon
consummation of the Exchange Offer in accordance with this Section 2, the
provisions of this Agreement shall continue to apply, mutatis mutandis, solely
with respect to Registrable Securities that are Private Exchange Notes and
Exchange Notes held by Participating Broker-Dealers, and neither the Company nor
any Subsidiary Guarantor shall have any further obligation to register
Registrable Securities (other than Private Exchange Notes and other than
Exchange Notes as to which clause (c)(l)(i) hereof applies) pursuant to Section
3 of this Agreement. No securities other than the Exchange Notes shall be
included in the Exchange Registration Statement.
(b) The Company and the Subsidiary Guarantors shall include within the
Prospectus contained in the Exchange Registration Statement one or more
section(s) reasonably acceptable to the Initial Purchasers, which shall contain
a summary statement of the positions taken or policies made by the Staff of the
SEC with respect to the potential "underwriter" status of any broker-dealer that
is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Notes received by such broker-dealer in the Exchange Offer (a
"Participating Broker-Dealer"), whether such positions or policies have been
publicly disseminated by the Staff of the SEC or such positions or policies, in
the reasonable judgment of the Initial Purchasers, represent the prevailing
views of
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the Staff of the SEC. Such section(s) shall also allow the use of the Prospectus
by all persons subject to the prospectus delivery requirements of the Securities
Act, including all Participating Broker-Dealers, and include a statement
describing the means by which Participating Broker-Dealers may resell the
Exchange Notes.
In the event that any Exchange Notes are received by any Participating
Broker-Dealers and the Company is notified by such Participating Broker-Dealers
of such event, the Company and the Subsidiary Guarantors shall use their
reasonable best efforts to keep the Exchange Registration Statement effective
and to amend and supplement the Prospectus contained therein in order to permit
such Prospectus to be lawfully delivered by all persons subject to the
prospectus delivery requirements of the Securities Act for such period of time
as such persons must comply with such requirements in order to resell the
Exchange Notes, provided that such period shall not exceed 180 days after the
consummation of the Exchange Offer (or such longer period if extended pursuant
to the last paragraph of Section 5) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, an Initial Purchaser
holds any Notes acquired by it and having the status of an unsold allotment in
the initial distribution, the Company upon the request of such Initial Purchaser
shall, simultaneously with the delivery of the Exchange Notes in the Exchange
Offer, issue and deliver to each such Initial Purchaser, in exchange (the
"Private Exchange") for the Notes held by such Initial Purchaser, a like
principal amount of debt securities of the Company that are identical in all
material respects to the Exchange Notes (the "Private Exchange Notes") (and
which are issued pursuant to the same indenture as the Exchange Notes) except
for the placement of a restrictive legend on such Private Exchange Notes. The
Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
Interest on the Exchange Notes and Private Exchange Notes will accrue from the
last interest payment date on which interest was paid on the Notes surrendered
in exchange therefor or, if no interest has been paid on the Notes, from the
Issue Date.
The Indenture shall provide that the holders of any of the Exchange
Notes and the Private Exchange Notes will vote and consent together on all
matters (to which such holders are entitled to vote or consent) as one class and
that none of the holders of the Exchange Notes and the Private Exchange Notes
will have the right to vote or consent as a separate class on any matter (to
which such holders are entitled to vote or consent).
(c) If (1) prior to the consummation of the Exchange Offer, the Company
reasonably determines in good faith or Holders of at least a majority in
aggregate principal amount of the Registrable Securities notify the Company that
they have reasonably determined in good faith that (i) in the opinion of
counsel, the Exchange Notes would not, upon receipt, be tradeable by such
Holders who are
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not affiliates of the Company without restriction under the Securities Act and
without restrictions under applicable blue sky or state securities laws or (ii)
in the opinion of counsel, the SEC is unlikely to permit the consummation of the
Exchange Offer and/or (2) subsequent to the consummation of the Private
Exchange, holders of at least a majority in aggregate principal amount of the
Private Exchange Notes so request with respect to the Private Exchange Notes
and/or (3) the Exchange Offer is commenced and not consummated prior to the 45th
day following the Consummation Date for any reason, then the Company shall
promptly deliver to the Holders and the Trustee notice thereof (the "Shelf
Notice") and shall thereafter file an Initial Shelf Registration as set forth in
Section 3 (which in the circumstances contemplated by clause (2) of this
sentence will relate solely to the Private Exchange Notes) pursuant to Section
3. The parties hereto agree that, following the delivery of a Shelf Notice to
the Holders of Registrable Securities, in the circumstances contemplated by
clauses (1) and/or (3) of the preceding sentence, neither the Company nor any
Subsidiary Guarantor shall have any further obligation to conduct the Exchange
Offer or the Private Exchange under this Section 2.
3. SHELF REGISTRATION
If a Shelf Notice is delivered as contemplated by Section 2(c), then:
(a) INITIAL SHELF REGISTRATION. The Company and the Subsidiary
Guarantors shall as promptly as reasonably practicable prepare and file with the
SEC a Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Registrable Securities (the "Initial
Shelf Registration"). If the Company and the Subsidiary Guarantors shall have
not yet filed an Exchange Offer, the Company and the Subsidiary Guarantors shall
use their reasonable best efforts to file with the SEC the Initial Shelf
Registration on or prior to the Filing Date. Otherwise, the Company and the
Subsidiary Guarantors shall use their reasonable best efforts to file with the
SEC the Initial Shelf Registration within 45 days of the delivery of the Shelf
Notice. The Initial Shelf Registration shall be on Form S-1 or another
appropriate form permitting registration of such Registrable Securities for
resale by such holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The Company and the
Subsidiary Guarantors shall not permit any securities other than the Registrable
Securities to be included in the Initial Shelf Registration or any Subsequent
Shelf Registration. The Company and the Subsidiary Guarantors shall use their
reasonable best efforts to cause the Initial Shelf Registration to be declared
effective under the Securities Act on or prior to the 75th day after the filing
thereof with the Commission and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the date which is 24
months from the Issue Date (the "Effectiveness Period"), or such shorter period
ending when (i) the Notes registered thereunder can be sold by non-
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affiliates of the Company pursuant to Rule 144(k) under the Securities Act, (ii)
all Registrable Securities covered by the Initial Shelf Registration have been
sold in the manner set forth and as contemplated in the Initial Shelf
Registration or (iii) a Subsequent Shelf Registration covering all of the
Registrable Securities has been declared effective under the Securities Act;
provided, however, that the Company will have the ability to suspend the
availability of the Shelf Registration during any consecutive 365-day period for
up to two periods of up to 45 consecutive days, but not more than an aggregate
of 60 days during any 365-day period (a "Suspension"), which Suspension shall
not constitute a default hereunder notwithstanding anything to the contrary
contained herein.
(b) SUBSEQUENT SHELF REGISTRATIONS. If the Initial Shelf Registration
or any Subsequent Shelf Registration ceases to be effective for any reason at
any time during the Effectiveness Period (other than because of the sale of all
of the securities registered thereunder or because the securities registered
thereunder may be sold by non-affiliates of the Company pursuant to Rule 144(k)
under the Securities Act), the Company and the Subsidiary Guarantors shall use
their reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 45 days of
such cessation of effectiveness amend the Shelf Registration in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional "shelf" Registration Statement
pursuant to Rule 415 covering all of the Registrable Securities (a "Subsequent
Shelf Registration"). If a Subsequent Shelf Registration is filed, the Company
and the Subsidiary Guarantors shall use their reasonable best efforts to cause
the Subsequent Shelf Registration to be declared effective as soon as
practicable after such filing and to keep such Registration Statement
continuously effective until the end of the Effectiveness Period. As used herein
the term "Shelf Registration" means the Initial Shelf Registration and any
Subsequent Shelf Registration.
(c) SUPPLEMENTS AND AMENDMENTS. The Company and the Subsidiary
Guarantors shall promptly supplement and amend the Shelf Registration if
required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration, if required by the
Securities Act, or if reasonably requested by the Holders of a majority in
aggregate principal amount of the Registrable Securities covered by such
Registration Statement or by any underwriter of such Registrable Securities.
4. ADDITIONAL INTEREST
(a) The Company and the Initial Purchasers agree that the Holders of
Registrable Securities will suffer damages if the Company fails to fulfill its
obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Company
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agrees to pay, as liquidated damages, additional interest on the Registrable
Securities ("Additional Interest") under the circumstances and to the extent set
forth below (each of which shall be given independent effect and shall not be
duplicative):
(i) if the Exchange Registration Statement (or, if the Exchange
Offer is not permitted under applicable law or SEC policy, the Initial
Shelf Registration) has not been filed on or prior to the Filing Date,
Additional Interest shall accrue on the Registrable Securities over and
above the stated interest at a rate of 0.25% per annum for the first 90
days immediately following the Filing Date, such Additional Interest
rate increasing by an additional 0.25% per annum at the beginning of
each subsequent 90-day period;
(ii) if neither the Exchange Registration Statement is declared
effective by the SEC nor the Shelf Registration is filed with the SEC
on or prior to the Effectiveness Date, Additional Interest shall accrue
on the Registrable Securities included or which should have been
included in such Registration Statement over and above the stated
interest at a rate of 0.25% per annum for the first 90 days immediately
following the day after the Effectiveness Date, such Additional
Interest rate increasing by an additional 0.25% per annum at the
beginning of each subsequent 90-day period; and
(iii) if (A) the Company has not exchanged Exchange Notes for all Notes
validly tendered in accordance with the terms of the Exchange Offer on
or prior to the Consummation Date, (B) if applicable, the Shelf
Registration has not been declared effective on or prior to the
Consummation Date or (C) if applicable, such Shelf Registration ceases
to be effective at any time during the Effectiveness Period, then
Additional Interest shall accrue on the Registrable Securities (over
and above any interest otherwise payable on the Registrable Securities)
at a rate of 0.25% per annum for the first 90 days commencing on the
(x) 166th day after the Issue Date, in the case of (A) or (B) above, or
(y) the day such Shelf Registration ceases to be effective in the case
of (C) above, such Additional Interest rate increasing by an additional
0.25% per annum at the beginning of each such subsequent 90-day period;
provided, however, that the Additional Interest rate on the Registrable
Securities may not exceed at any one time in the aggregate 1.0% per annum; and
provided, further, that (1) upon the filing of the Exchange Registration
Statement (or, if the Exchange Offer is not permitted under applicable law or
SEC policy, the Initial Shelf Registration) as required hereunder (in the case
of clause (i) of this Section 4(a)), (2) upon the effectiveness of the Exchange
Registration Statement or the
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filing of the Shelf Registration as required hereunder (in the case of clause
(ii) of this Section 4(a)), or (3) upon the exchange of Exchange Notes for all
Notes tendered (in the case of clause (iii)(A) of this Section 4(a)), or upon
the effectiveness of the Shelf Registration (in the case of clause (iii)(B) of
this Section 4(a)) or upon the effectiveness of the Shelf Registration which had
ceased to remain effective (in the case of clause (iii)(C) of this Section
4(a)), Additional Interest on the Registrable Securities as a result of such
clause (or the relevant subclause thereof), as the case may be, shall cease to
accrue. It being understood and agreed that, notwithstanding any provision to
the contrary, so long as any Registrable Security is then covered by an
effective Shelf Registration, no Additional Interest shall accrue on such
Registrable Security.
(b) The Company shall notify the Trustee within one business day after
each and every date on which an event occurs in respect of which Additional
Interest is required to be paid (an "Event Date"). The Company shall pay the
Additional Interest due on the Registrable Securities by depositing with the
Trustee, in trust, for the benefit of the Holders thereof, on or before the
applicable semi-annual interest payment date, immediately available funds in
sums sufficient to pay the Additional Interest then due to Holders of
Registrable Securities. The Additional Interest amount due shall be payable on
each interest payment date to the record Holder of Registrable Securities
entitled to receive the interest payment to be made on such date as set forth in
the Indenture. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest rate by the principal amount of
the affected Registrable Securities of such Holders, multiplied by a fraction,
the numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed), and, the denominator of which is 360. Each
obligation to pay Additional Interest shall be deemed to accrue immediately
following the occurrence of the applicable Event Date. The parties hereto agree
that the Additional Interest provided for in this Section 4 constitutes a
reasonable estimate of the damages that may be incurred by Holders of
Registrable Securities by reason of the failure of a Shelf Registration or
Exchange Offer to be filed or declared effective, or the Exchange Offer to be
consummated, or a Shelf Registration to remain effective, as the case may be, in
accordance with this Section 4.
5. REGISTRATION PROCEDURES
In connection with the registration of any Registrable Securities
pursuant to Sections 2 or 3 hereof, the Company and the Subsidiary Guarantors
shall effect such registrations to permit the sale of such Registrable
Securities in accordance with the intended method or methods of disposition
thereof, and pursuant thereto the Company and the Subsidiary Guarantors shall:
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(a) use their reasonable best efforts to prepare and file with
the SEC, as soon as practicable after the date hereof but in any event
prior to the Filing Date in the case of the Exchange Registration
Statement and the 45th day following the Consummation Date in the case
of the Shelf Registration Statement, a Registration Statement or
Registration Statements as prescribed by Section 2 or 3, and to use
their reasonable best efforts to cause each such Registration Statement
to become effective and remain effective as provided herein, provided
that, if (1) such filing is pursuant to Section 3, or (2) a Prospectus
contained in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Company and
the Subsidiary Guarantors shall upon written request furnish to and
afford the Holders of the Registrable Securities (which in the case of
Registrable Securities in the form of global certificates shall be The
Depository Trust Company ("DTC")) and each such Participating
Broker-Dealer, as the case may be, covered by such Registration
Statement, their counsel and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed.
(b) Prepare and file with the SEC such amendments, and
post-effective amendments to each Shelf Registration or Exchange
Registration Statement, as the case may be, as may be necessary to keep
such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the case may be;
cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) under the Securities
Act; and comply with the provisions of the Securities Act, the Exchange
Act and the rules and regulations of the SEC promulgated thereunder
applicable to them with respect to the disposition of all Registrable
Securities covered by such Registration Statement as so amended or in
such Prospectus as so supplemented and with respect to the subsequent
resale of any Registrable Securities being sold by a Participating
Broker-Dealer covered by any such Prospectus; neither the Company nor
the Subsidiary Guarantors shall be deemed to have used their reasonable
best efforts to keep a Registration Statement effective during the
Applicable Period if any of them voluntarily takes any action that
would result in selling Holders of the Registrable Securities covered
thereby or Participating Broker-Dealers seeking to sell Exchange Notes
not being able to sell such Registrable Securities or such Exchange
Notes during that period unless such action is required by applicable
law
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or unless the Company or the Subsidiary Guarantor complies with this
Agreement, including without limitation, the provisions of paragraph
5(j) hereof and the last paragraph of this Section 5.
(c) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, notify the selling Holders
of Registrable Securities, or each such Participating Broker-Dealer, as
the case may be, their counsel and the managing underwriters, if any,
who have provided the Company and the Subsidiary Guarantors with their
names and addresses promptly (but in any event within two business
days), and confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act
(including in such notice a written statement that any Holder may, upon
request, obtain, without charge, one conformed copy of such
Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be
incorporated by reference and exhibits), (ii) of the issuance by the
SEC of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that
purpose, (iii) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Registrable
Securities or the Exchange Notes to be sold by any Participating
Broker- Dealer for offer or sale in any jurisdiction, or the initiation
or threatening of any proceeding for such purpose, (iv) of the
happening of any event or any information becoming known that makes any
statement made in such Registration Statement or related Prospectus or
any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of
any changes in such Registration Statement, Prospectus or documents so
that, in the case of the Registration Statement, it will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will
not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, and (v) of the Company's reasonable
determination that a post-effective amendment to a Registration
Statement would be appropriate.
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(d) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, use its reasonable best
efforts to prevent, during the Effectiveness Period in the case of (1)
or during the Applicable Period in the case of (2), the issuance of any
order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of any
of the Registrable Securities or the Exchange Notes to be sold by any
Participating Broker-Dealer, for sale in any jurisdiction, and, if any
such order is issued, to use its reasonable best efforts to obtain the
withdrawal of any such order at the earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and
if requested by the managing underwriters, if any, or the Holders of a
majority in aggregate principal amount of the Registrable Securities
being sold in connection with an underwritten offering, (i) promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriters, if any, or such Holders or
counsel reasonably request to be included therein, or (ii) make all
required filings of such prospectus supplement or such post-effective
amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment.
(f) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, furnish to each selling
Holder of Registrable Securities and to each such Participating
Broker-Dealer who so requests and to counsel and each managing
underwriter, if any, without charge, one conformed copy of the
Registration Statement or Statements and each post-effective amendment
thereto, including financial statements and schedules, and if
requested, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes
15
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during the Applicable Period, deliver to each selling Holder of
Registrable Securities, or each such Participating Broker-Dealer, as
the case may be, their counsel, and the underwriters, if any, without
charge, as many copies of the Prospectus or Prospectuses (including
each form of preliminary prospectus) and each amendment or supplement
thereto and any documents incorporated by reference therein as such
Persons may reasonably request; and, subject to the last paragraph of
this Section 5, the Company and the Subsidiary Guarantors hereby
consent to the use of such Prospectus and each amendment or supplement
thereto by each of the selling holders of Registrable Securities or
each such Participating Broker- Dealer, as the case may be, and the
underwriters or agents, if any, and dealers (if any), in connection
with the offering and sale of the Registrable Securities covered by or
the sale by Participating Broker-Dealers of the Exchange Notes pursuant
to such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities or
any delivery of a Prospectus contained in the Exchange Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, use their reasonable best efforts
to register or qualify, and cooperate with the selling Holders of
Registrable Securities or each such Participating Broker-Dealer, as the
case may be, the underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Securities or
Exchange Notes for offer and sale under the securities or Blue Sky laws
of such jurisdictions within the United States as any selling Holder,
Participating Broker-Dealer, or the managing underwriters reasonably
request in writing, provided that where Exchange Notes held by
Participating Broker-Dealers or Registrable Securities are offered
other than through an underwritten offering, the Company and the
Subsidiary Guarantors agree to cause their counsel to perform Blue Sky
investigations and file registrations and qualifications required to be
filed pursuant to this Section 5(h); keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and
all other reasonable acts or things necessary or advisable to enable
the disposition in such jurisdictions of the Exchange Notes held by
Participating Broker-Dealers or the Registrable Securities covered by
the applicable Registration Statement, provided that neither the
Company nor any Subsidiary Guarantor shall be required to (A) qualify
generally to do business in any jurisdiction where it is not then so
qualified, (B) take any action that would subject it to general service
of process in any such jurisdiction where it is not then so subject or
(C) subject itself to taxation in excess of a nominal dollar amount in
any such jurisdiction.
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(i) If a Shelf Registration is filed pursuant to Section 3,
reasonably cooperate with the selling Holders of Registrable Securities
and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold, which certificates shall not bear any
restrictive legends and shall be in a form eligible for deposit with
DTC; and enable such Registrable Securities to be registered in such
names as the managing underwriter or underwriters, if any, or Holders
may request.
(j) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, upon the occurrence of any
event contemplated by paragraph 5(c)(iv) or 5(c)(v) above, as promptly
as practicable prepare and (subject to Section 5(a) above) file with
the SEC, solely at the expense of the Company and the Subsidiary
Guarantors, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities being sold
thereunder or to the purchasers of the Exchange Notes to whom such
Prospectus will be delivered by a Participating Broker-Dealer, any such
Prospectus will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(k) To the extent that no such rating has yet been assigned,
use their reasonable best efforts to cause the Registrable Securities
covered by a Registration Statement or the Exchange Notes, as the case
may be, to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority in aggregate principal amount of
Registrable Securities covered by such Registration Statement or the
Exchange Notes, as the case may be, or the managing underwriters, if
any.
(l) Prior to the consummation of the Exchange Offer or the
sale of any of the Registrable Securities pursuant to a Shelf
Registration, (i) provide the Trustee with printed certificates for the
Registrable Securities or Exchange Notes, as the case may be, in a form
eligible for deposit with DTC and (ii) provide a CUSIP number for the
Registrable Securities or Exchange Notes, as the case may be.
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(m) Use their best efforts to cause all Registrable Securities
covered by such Registration Statement or the Exchange Notes, as the
case may be, to be (i) listed on each securities exchange, if any, on
which the Notes are then listed, or (i) authorized to be quoted on the
National Association of Securities Dealers Automated Quotation System
("NASDAQ") or the National Market System of NASDAQ if the Notes are so
authorized.
(n) In connection with an underwritten offering of Registrable
Securities pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings and take all such
other actions as are reasonably requested by the managing underwriters
in order to expedite or facilitate the registration or the disposition
of such Registrable Securities, and in such connection, (i) make such
representations and warranties to the underwriters, with respect to the
business of the Company and its subsidiaries, if any, and the
Registration Statement, Prospectus and documents, if any, incorporated
or deemed to be incorporated by reference therein, in each case, as are
customarily made by issuers to underwriters in underwritten offerings,
and confirm the same if and when requested; (ii) obtain an opinion of
counsel to the Company and the Subsidiary Guarantors and updates
thereof in form and substance reasonably satisfactory to the managing
underwriters, addressed to the underwriters covering the matters
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by underwriters;
(iii) obtain "comfort" letters and updates thereof in form and
substance reasonably satisfactory to the managing underwriters from the
independent certified public accountant(s) of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to each of
the underwriters, such letters to be in customary form and covering
matters of the type customarily covered in "comfort" letters in
connection with underwritten offerings and such other matters as may be
reasonably requested by underwriters; and (iv) if an underwriting
agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable than those set forth in
Section 7 hereof (or such other provisions and procedures acceptable to
Holders of a majority in aggregate principal amount of Registrable
Securities covered by such Registration Statement and the managing
underwriters or agents) with respect to all parties to be indemnified
pursuant to said Section. The above shall be done at each closing under
such underwriting agreement, or as and to the extent required
thereunder.
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(o) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, make available for
inspection by any selling Holder of such Registrable Securities being
sold, or each such Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of Registrable
Securities, if any, and any attorney, accountant or other agent
retained by any such selling holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable
business bears, all financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries, if any
(collectively, the "Records"), as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the Company and its
subsidiaries, if any to supply all information in each case reasonably
requested by any such Inspector in connection with such Registration
Statement. Each selling Holder of such Registrable Securities and each
such Participating Broker- Dealer will be required to agree that
information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Company unless and until
such is made generally available to the public.
(p) Provide an indenture trustee for the Registrable
Securities or the Exchange Notes, as the case may be, and cause the
Indenture to be qualified under the TIA not later than the effective
date of the Exchange Offer or the first Registration Statement relating
to the Registrable Securities; and in connection therewith, cooperate
with the Trustee and the holders of the Registrable Securities, to
effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the TIA;
and execute, and use its reasonable best efforts to cause the Trustee
to execute, all documents as may be required to effect such changes,
and all other forms and documents required to be filed with the SEC to
enable the Indenture to be so qualified in a timely manner.
(q) Comply in all material respects with all applicable rules
and regulations of the SEC and make generally available to its
securityholders earning statements satisfying the provisions of Section
ll(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than 90 days after
the end of any 12- month period (i) commencing at the end of any fiscal
quarter in which
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Registrable Securities are sold to underwriters in a firm commitment or
best efforts underwritten offering and (ii) if not sold to underwriters
in such an offering, commencing on the first day of the first fiscal
quarter of the Company after the effective date of a Shelf Registration
Statement, which statements shall cover said 12-month periods.
(r) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Securities by Holders to
the Company (or to such other Person as directed by the Company) in
exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be, the Company shall ▇▇▇▇, or caused to be marked, on such
Registrable Securities that such Registrable Securities are being
cancelled in exchange for the Exchange Notes or the Private Exchange
Notes, as the case may be; in no event shall such Registrable
Securities be marked as paid or otherwise satisfied.
(s) Reasonably cooperate with each seller of Registrable
Securities covered by any Registration Statement and each underwriter,
if any, participating in the disposition of such Registrable Securities
and their respective counsel in connection with any filings required to
be made with the National Association of Securities Dealers, Inc. (the
"NASD").
(t) Use their reasonable best efforts to take all other steps
necessary to effect the registration of the Registrable Securities
covered by a Registration Statement contemplated hereby.
The Company and the Subsidiary Guarantors may require each seller of
Registrable Securities or Participating Broker-Dealer as to which any
registration is being effected to furnish to the Company and the Subsidiary
Guarantors such information regarding such seller or Participating Broker-Dealer
and the distribution of such Registrable Securities or Exchange Notes to be sold
by such Participating Broker-Dealer, as the case may be, as the Company and the
Subsidiary Guarantors may, from time to time, reasonably request. The Company
and the Subsidiary Guarantors may exclude from such registration the Registrable
Securities of any seller or Participating Broker-Dealer who unreasonably fails
to furnish such information within a reasonable time after receiving such
request. Each seller as to which any Shelf Registration is being effected is
deemed to agree to furnish promptly to the Company all information required to
be disclosed in order to make the information previously furnished to the
Company by such seller not materially misleading.
Each Holder of Registrable Securities and each Participating
Broker-Dealer agrees by acquisition of such Registrable Securities or Exchange
Notes to be sold by such Participating Broker-Dealer, as the case may be, that,
upon receipt
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of any notice from the Company of a Suspension or the happening of any event of
the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv), or 5(c)(v), such
Holder will forthwith discontinue disposition of such Registrable Securities
covered by such Registration Statement or Prospectus or Exchange Notes to be
sold by such Participating Broker-Dealer, as the case may be, until such
holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(j), or until it is advised in writing (the "ADVICE")
by the Company that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto. In the event the
Company shall give any such notice, the Applicable Period shall be extended by
the number of days during such periods from and including the date of the giving
of such notice to and including the date when each seller of Registrable
Securities covered by such Registration Statement or Exchange Notes to be sold
by such Participating Broker-Dealer, as the case may be, shall have received (x)
the copies of the supplemented or amended Prospectus contemplated by Section
5(j) or (y) the Advice.
6. REGISTRATION EXPENSES
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Company and the Subsidiary Guarantors shall be borne
by the Company whether or not the Exchange Offer or a Shelf Registration is
filed or becomes effective, including, without limitation, (i) all registration
and filing fees (including, without limitation, (A) fees with respect to filings
required to be made with the NASD in connection with an underwritten offering
and (B) fees and expenses of compliance with state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of counsel in
connection with Blue Sky qualifications of the Registrable Securities or
Exchange Notes and determination of the eligibility of the Registrable
Securities or Exchange Notes for investment under the laws of such jurisdictions
in the United States (x) where the holders of Registrable Securities are
located, in the case of the Exchange Notes, or (y) as provided in Section 5(h),
in the case of Registrable Securities or Exchange Notes to be sold by a
Participating Broker Dealer during the Applicable Period), (ii) printing and
delivery expenses (including, without limitation, expenses of printing
certificates for Registrable Securities or Exchange Notes in a form eligible for
deposit with DTC and of printing prospectuses if the printing of prospectuses is
requested by the managing underwriters, if any, or, in respect of Registrable
Securities or Exchange Notes to be sold by any Participating Broker-Dealer
during the Applicable Period, by the Holders of a majority in aggregate
principal amount of the Registrable Securities included in any Registration
Statement or of such Exchange Notes, as the case may be), (iii) fees and
disbursements of counsel for the Company and the Subsidiary Guarantors and fees
and disbursements of special counsel for the sellers of Registrable Securities
(subject to the provisions of Section 6(b)), (iv) fees and disbursements of all
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independent certified public accountants referred to in Section 5(n)(iii)
(including, without limitation, the expenses of any special audit and "comfort"
letters required by or incident to such performance), (v) rating agency fees,
(vi) Securities Act liability insurance, if the Company and the Subsidiary
Guarantors desire such insurance, (vii) fees and expenses of all other Persons
retained by the Company and the Subsidiary Guarantors, (viii) internal expenses
of the Company and the Subsidiary Guarantors (including, without limitation, all
salaries and expenses of officers and employees of the Company and the
Subsidiary Guarantors performing legal or accounting duties), (ix) the expense
of any annual audit, (x) the fees and expenses incurred in connection with the
listing of the securities to be registered on any securities exchange, if
applicable, and (xi) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, securities
sales agreements, indentures and any other documents necessary in order to
comply with this Agreement; provided that, in any underwritten offering of the
Notes or the Exchange Notes, each Holder is responsible for any underwriting
discounts or commissions in connection with the sale of its Notes or Exchange
Notes thereby.
(b) In connection with any Shelf Registration hereunder, the Company
and the Subsidiary Guarantors shall reimburse the Holders of the Registrable
Securities being registered in such registration for the fees and disbursements
of not more than one counsel (in addition to appropriate local counsel) chosen
by the Holders of a majority in aggregate principal amount of the Registrable
Securities to be included in such Registration Statement. Such Holders shall be
responsible for any and all other out-of-pocket expenses of the Holders of
Registrable Securities incurred in connection with the registration of the
Registrable Securities.
7. INDEMNIFICATION
The Company and the Subsidiary Guarantors agree to indemnify and hold
harmless each Holder of Registrable Securities and each Participating Broker-
Dealer selling Exchange Notes during the Applicable Period, the officers and
directors of each such person, and each person, if any, who controls any such
person within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act (each, a "PARTICIPANT"), from and against any and all
losses, claims, damages and liabilities (including, without limitation, the
reasonable legal fees and other expenses actually incurred in connection with
any suit, action or proceeding or any claim asserted) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) or Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements
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therein, in light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Participant furnished to the Company in writing by such Participant
expressly for use therein.
Each Participant will be required to agree, severally and not jointly,
to indemnify and hold harmless each of the Company and the Subsidiary
Guarantors, their directors, their officers and each person who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
and the Subsidiary Guarantors to each Participant, but only with reference to
information relating to such Participant furnished to the Company in writing by
such Participant expressly for use in any Registration Statement or Prospectus,
any amendment or supplement thereto, or any preliminary prospectus. The
liability of any Participant under this paragraph shall in no event exceed the
proceeds received by such Participant from sales of Registrable Securities
giving rise to such obligations.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses actually incurred by such counsel related to such
proceeding, provided, that the failure to so notify the Indemnifying Person
shall not relieve it of any obligation or liability which it may have hereunder
or otherwise (unless and only to the extent that such failure directly results
in the loss or compromise of any material rights or defenses). In any such
proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary, (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably satisfactory to
the Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for
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all Indemnified Persons, and that all such fees and expenses shall be reimbursed
as they are incurred. Any such separate firm for the Participants shall be
designated in writing by Participants who sold a majority in interest of
Registrable Securities sold by all such Participants and any such separate firm
for the Company, the Subsidiary Guarantors, their directors, their officers and
such control persons of the Company shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent, the Indemnifying Person agrees to indemnify any Indemnified Person from
and against any loss or liability by reason of such settlement. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemnified Person for
reasonable fees and expenses actually incurred by counsel as contemplated by the
third sentence of this paragraph, the Indemnifying Person 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 30 days after receipt
by such Indemnifying Person of the aforesaid request and (ii) such Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative fault
of the Company and the Subsidiary Guarantors on the one hand and the
Participants on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Company and the
Subsidiary Guarantors on the one hand and the Participants on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Participants and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
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The parties shall agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Participants were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Securities
exceeds the amount of any damages that such Participant 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 indemnity and contribution agreements contained in this Section 7
will be in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
8. RULE 144 AND RULE 144A
The Company and the Subsidiary Guarantors covenant that they will file
the reports required to be filed by them under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder in a
timely manner and, if at any time the Company and the Subsidiary Guarantors are
not required to file such reports, they will, upon the request of any Holder of
Registrable Securities, make publicly available other information so long as
necessary to permit sales pursuant to Rule 144 and Rule 144A under the
Securities Act. The Company and the Subsidiary Guarantors further covenant that
they will take such further action as any Holder of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
holder to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144 and Rule
144A under the Securities Act, as such Rules may be amended from time to time,
or (b) any similar rule or regulation hereafter adopted by the SEC.
9. UNDERWRITTEN REGISTRATIONS
If any of the Registrable Securities covered by any Shelf Registration
are to be sold in an underwritten offering, the investment
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banker or investment bankers and manager or managers that will manage the
offering will be selected by the Holders of a majority in aggregate principal
amount of such Registrable Securities included in such offering and reasonably
acceptable to the Company.
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. MISCELLANEOUS
(a) REMEDIES. In the event of a breach by the Company or any Subsidiary
Guarantor of any of its obligations under this Agreement, each Holder of
Registrable Securities, in addition to being entitled to exercise all rights
provided herein, in the Indenture or, in the case of the Initial Purchasers, in
the Purchase Agreement or granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The Company
and the Subsidiary Guarantors agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by them of any of the
provisions of this Agreement and hereby further agree that, in the event of any
action for specific performance in respect of such breach, they shall waive the
defense that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company and the Subsidiary
Guarantors have not, as of the date hereof, entered and shall not, after the
date of this Agreement, enter into any agreement with respect to any of their
securities that is inconsistent with the right granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The Company and the Subsidiary Guarantors have not entered
and will not enter into any agreement with respect to any of their securities
which will grant to any Person piggy-back rights with respect to a Registration
Statement.
(c) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. Neither the Company
nor any Subsidiary Guarantor shall, directly or indirectly, take any action with
respect to the Registrable Securities as a class that would adversely affect the
ability of the Holders of Registrable Securities to include such Registrable
Securities in a registration undertaken pursuant to this Agreement.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof
26
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may not be given, unless the Company has obtained the written consent of Holders
of at least a majority of the then outstanding aggregate principal amount of
Registrable Securities. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable Securities whose securities
are being sold pursuant to a Registration Statement and that does not directly
or indirectly affect, impair, limit or compromise the rights of other Holders of
Registrable Securities may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Securities being sold by such
Holders pursuant to such Registration Statement, provided that the provisions of
this sentence may not be amended, modified or supplemented except in accordance
with the provisions of the immediately preceding sentence.
(e) NOTICES. All notices and other communications (including without
limitation any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of Registrable Securities, at the most
current address given by the Trustee to the Company; and
(ii) if to the Company or the Subsidiary Guarantors, One
▇▇▇▇▇▇▇ Avenue, Farmingdale, New York, Attention: President; with a
copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; one business day after
being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the trustee under the
Indenture at the address specified in such Indenture.
(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 Registrable 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 holds
Registrable Securities.
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(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, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(j) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(k) ENTIRE AGREEMENT. This Agreement, together with the Purchase
Agreement, is intended by the parties as a final expression of their agreement,
and is intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein.
(l) SECURITIES HELD BY THE COMPANY OR ITS AFFILIATES. Whenever the
consent or approval of holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
its affiliates (as such term is defined in Rule 405 under the Securities Act)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
(m) SUBSIDIARY GUARANTOR A PARTY. Immediately upon the designation of
any subsidiary of the Company as a Subsidiary Guarantor (as defined in the
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Indenture), the Company shall cause such Subsidiary Guarantor to become a party
hereto (including, without limitation, the obligation to pay Additional
Interest, if any, pursuant to the terms of Section 4 hereof), by executing and
delivering to the Initial Purchasers an appropriate amendment to this Agreement.
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IN WITNESS HEREOF, the parties have executed this Agreement as of the
date first written above.
COLORADO PRIME CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
KAL-MAR PROPERTIES CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
CONCORD FINANCIAL SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
PRIME FOODS DEVELOPMENT CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
NATWEST CAPITAL MARKETS LIMITED
DRESDNER KLEINWORT ▇▇▇▇▇▇
NORTH AMERICA LLC.
By: ▇.▇. ▇▇▇▇▇▇ Securities Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
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SCHEDULE I
SUBSIDIARY GUARANTORS
Kal-Mar Properties Corp.
Concord Financial Services, Inc.
Prime Foods Development Corp.