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Exhibit 10.21
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REGISTRATION RIGHTS AGREEMENT
among
ADVANCED ACCESSORY SYSTEMS, LLC,
AAS CAPITAL CORPORATION,
THE GUARANTORS NAMED HEREIN
and
CHASE SECURITIES INC.
and
FIRST CHICAGO CAPITAL MARKETS, INC.
DATED OCTOBER 1, 1997
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is
dated as of October 1, 1997, by and among ADVANCED ACCESSORY SYSTEMS, LLC, a
Delaware limited liability company (the "Company"), AAS Capital Corporation
("Capital Corp."), a newly formed Delaware corporation and each of the
Company's subsidiaries formed or acquired after the Closing Date required to
become a guarantor hereunder, the "Guarantors," and, together with the Company
and Capital Corp. the "Issuers", and CHASE SECURITIES INC. and FIRST CHICAGO
CAPITAL MARKETS, INC. (the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of September 25, 1997, by and among the Issuers and the
Initial Purchasers (the "Purchase Agreement") relating to the sale by the
Company and Capital Corp. to the Initial Purchasers of $125,000,000 aggregate
principal amount of the Company's and Capital Corp.'s 9 3/4% Senior Subordinated
Notes due 2007 (the "Notes"). The Notes have been guaranteed (the "Guarantees")
on a senior subordinated basis by each of the Guarantors. In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the Issuers have agreed
to provide the registration rights set forth in this Agreement for the benefit
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 the last paragraph of Section 5.
Applicable Period: See Section 2(b).
Closing Date: The Closing Date as defined in the Purchase
Agreement.
Company: See the introductory paragraph to this Agreement.
Effectiveness Date: The 270th day after the Closing Date;
provided, however, that, with respect to the Initial Shelf Registration
Statement, (i) if the Filing Date in respect thereof is fewer than 60 days prior
to the 270th day after the Closing Date, then the Effectiveness Date in respect
thereof shall be the 60th day after such Filing Date and (ii) if the Filing Date
is after the filing of the Exchange Offer Registration Statement with the SEC,
then the Effectiveness Date in respect thereof shall be the 60th day after such
Filing Date.
Effectiveness Period: See Section 3(a).
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.
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Exchange Offer: See Section 2(a).
Exchange Offer Registration Statement: See Section 2(a).
Exchange Securities: See Section 2(a).
Expiration Date: See Section 2(a).
Filing Date: The 210th day after the Closing Date; provided,
however, that, with respect to the Initial Shelf Registration Statement, (i) if
a Shelf Registration Event shall have occurred fewer than 60 days prior to the
210th day after the Closing Date, then the Filing Date in respect thereof shall
be the 60th day after such Shelf Registration Event and (ii) if a Shelf
Registration Event shall have occurred after the filing of the Exchange Offer
Registration Statement with the SEC, then the Filing Date in respect thereof
shall be the 30th day after such Shelf Registration Event.
Guarantees: See the second introductory paragraph to this
Agreement.
Guarantors: See the introductory paragraph to this
Agreement.
Holder: Any record holder of Registrable Securities.
Indemnified Person: See the third paragraph of Section 7.
Indemnifying Person: See the third paragraph of Section 7.
Indenture: The Indenture, dated as of October 1, 1997, among
the Company, Capital Corp., the Guarantors and First Union National Bank, 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 Statement: See Section 3(a).
Inspectors: See Section 5(o).
Issue Date: The date of original issuance of the Notes.
Issuers: Section introductory paragraph to this Agreement.
Market Maker: See Section 10.
NASD: See Section 5(t).
Notes: See the second introductory paragraph to this
Agreement.
Participant: See the first paragraph of Section 7.
Participating Broker-Dealer: See Section 2(b).
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Person: An individual, corporation, limited or general
partnership, limited liability company, joint venture, association, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
Private Exchange: See Section 2(b).
Private Exchange Securities: 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 and a prospectus filed with the SEC pursuant to Section 10
hereof), 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.
Purchase Agreement: See the second introductory paragraph
to this Agreement.
Records: See Section 5(o).
Registrable Securities: The Notes upon original issuance
thereof and at all times subsequent thereto, each Exchange Security as to which
Section 2(c)(v) hereof is applicable upon original issuance and at all times
subsequent thereto and, if issued, the Private Exchange Securities, until in the
case of any such Notes, Exchange Securities or Private Exchange Securities, as
the case may be, (i) a Registration Statement (other than, with respect to any
Exchange Security as to which Section 2(c)(v) hereof is applicable, the Exchange
Offer Registration Statement) covering such Notes, Exchange Securities or
Private Exchange Securities has been declared effective by the SEC and such
Notes, Exchange Securities or Private Exchange Securities, as the case may be,
have been disposed of in accordance with such effective Registration Statement,
(ii) such Notes, Exchange Securities or Private Exchange Securities, as the case
may be, are sold in compliance with Rule 144, (iii) such Note has been exchanged
for an Exchange Security pursuant to the Exchange Offer and Section 2(c)(v) is
not applicable thereto, or (iv) such Notes, Exchange Securities or Private
Exchange Securities, as the case may be, cease to be outstanding.
Registration Statement: Any registration statement of the
Issuers, including, but not limited to, the Exchange Offer Registration
Statement, that covers any of the Registrable Securities pursuant to the
provisions of this Agreement and any registration statement filed with the SEC
pursuant to Section 10 hereof, 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
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.
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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 Statement: See Section 3(b).
Shelf Registration Event: See Section 2(c).
Subsequent Shelf Registration Statement: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if applicable,
the trustee under any indenture governing the Exchange Securities and Private
Exchange Securities (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.
2. EXCHANGE OFFER
(a) The Issuers agree to file with the SEC, on or before the
Filing Date, an offer to exchange (the "Exchange Offer") any and all of the
Registrable Securities for a like aggregate principal amount of senior
subordinated debt securities of the Company and Capital Corp. which are
identical to the Notes and are guaranteed, jointly and severally, by each of the
Guarantors with terms identical to the Guarantees (the "Exchange Securities")
(and which are entitled to the benefits of a trust indenture that is
substantially identical to the Indenture (other than such changes as are
necessary to comply with any requirements of the SEC to effect or maintain the
qualification of such trust indenture under the TIA) and which has been
qualified under the TIA), except that the Exchange Securities shall have been
registered pursuant to an effective Registration Statement under the Securities
Act and shall contain no restrictive legend thereon. The Exchange Offer will be
registered under the Securities Act on the appropriate form (the "Exchange Offer
Registration Statement") and will comply with all applicable tender offer rules
and regulations under the Exchange Act. Each of the Issuers agrees to use its
best efforts to (i) cause the Exchange Offer Registration Statement to become
effective and to commence the Exchange Offer on or prior to the Effectiveness
Date, (ii) keep the Exchange Offer open for 30 days (or longer if required by
applicable law) (the last day of such period, the "Expiration Date") and (iii)
exchange Exchange Securities for all Notes validly tendered and not withdrawn
pursuant to the Exchange Offer on or prior to the fifth day following the
Expiration Date.
Each Holder who participates in the Exchange Offer will be
deemed to represent that any Exchange Securities received by it will be acquired
in the ordinary course of its business, that at the time of the
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consummation of the Exchange Offer such Holder will have no arrangement with any
Person to participate in the distribution of the Exchange Securities in
violation of the provisions of the Securities Act and that such Holder is not an
affiliate of any of the Issuers 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 Securities, Exchange Securities to which Section 2(c)(v) is applicable
and Exchange Securities held by Participating Broker-Dealers, and the Issuers
shall have no further obligation to register Registrable Securities (other than
Private Exchange Securities and other than Exchange Securities as to which
Section 2(c)(v) hereof applies) pursuant to Section 3 of this Agreement. No
securities other than the Exchange Securities shall be included in the Exchange
Offer Registration Statement.
(b) The Issuers shall include within the Prospectus contained
in the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Initial Purchasers, which shall
contain a summary statement of the positions taken or policies made by the Staff
of the SEC (and publicly disseminated) 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 Securities received by
such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"). Such
"Plan of Distribution" section 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
Securities.
Each of the Issuers shall use its best efforts to keep the
Exchange Offer 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 at least 180 days following the first bona fide offering of
securities under such Registration Statement (or such shorter time as such
Persons must comply with such requirements in order to resell the Exchange
Securities) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Notes acquired by it and having, or which are reasonably
likely to be determined to have, the status of an unsold allotment in the
initial distribution, the Issuers upon the request of the Initial Purchasers
shall, simultaneously with the delivery of the Exchange Securities in the
Exchange Offer, issue and deliver to the Initial Purchasers, in exchange (the
"Private Exchange") for the Notes held by the Initial Purchasers, a like
principal amount of debt securities of the Company and Capital Corp. that are
identical to the Exchange Securities and are guaranteed, jointly and severally,
by each of the Guarantors with terms identical to the Guarantees (the "Private
Exchange Securities") (and which are issued pursuant to the same indenture as
the Exchange Securities) (except for the placement of a restrictive legend on
such Private Exchange Securities). The Private Exchange Securities shall bear
the same CUSIP number as the Exchange Securities. Interest on the Exchange
Securities and Private Exchange Securities 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.
Any indenture under which the Exchange Securities or the
Private Exchange Securities will be issued shall provide that the holders of any
of the Exchange Securities and the Private Exchange Securities 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 Securities and
the Private Exchange Securities will have the right to vote or consent as a
separate class on any matter.
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(c) If, (i) because of any change in law or in currently
prevailing interpretations of the Staff of the SEC, the Company reasonably
determines in good faith, after consultation with counsel, that it is not
permitted to effect the Exchange Offer, (ii) the Exchange Offer is not commenced
on or prior to the Effectiveness Date, (iii) the Exchange Offer is, for any
reason, not consummated on or prior to the 5th day after the Expiration Date,
(iv) any Holder of Private Exchange Securities so requests, or (v) in the case
of any Holder that participates in the Exchange Offer, such Holder does not
receive Exchange Securities on the date of the exchange that may be sold without
restriction under state and federal securities laws (the occurrence of any such
event set forth in the foregoing clauses (i) through (v), a "Shelf Registration
Event"), then, in the case of such events the Company shall promptly deliver to
the Holders and the Trustee notice thereof (the "Shelf Notice") and thereafter
the Issuers shall file an Initial Shelf Registration Statement pursuant to
Section 3.
3. SHELF REGISTRATION
If a Shelf Registration Event has occurred (and whether or not
an Exchange Offer Registration Statement has been filed with the SEC or has
become effective, or the Exchange Offer has been consummated), then:
(a) Initial Shelf Registration Statement. The Issuers shall
promptly 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 Statement"). The Issuers
shall file with the SEC the Initial Shelf Registration Statement on or prior to
the Filing Date. The Initial Shelf Registration Statement shall be on Form S-1
or another appropriate form, if available, permitting registration of such
Registrable Securities for resale by such holders in the manner designated by
them (including, without limitation, in one or more underwritten offerings). The
Issuers shall not permit any securities other than the Registrable Securities to
be included in the Initial Shelf Registration Statement or any Subsequent Shelf
Registration Statement (as defined below). Each of the Issuers shall use their
best efforts to cause the Initial Shelf Registration Statement to be declared
effective under the Securities Act on or prior to the Effectiveness Date, and to
keep the Initial Shelf Registration Statement continuously effective under the
Securities Act until the date which is 24 months from the Closing Date, or such
shorter period ending when (i) all Registrable Securities covered by the Initial
Shelf Registration Statement have been sold in the manner set forth and as
contemplated in the Initial Shelf Registration Statement or (ii) a Subsequent
Shelf Registration Statement covering all of the Registrable Securities has been
declared effective under the Securities Act (such 24 month or shorter period,
the "Effectiveness Period").
(b) Subsequent Shelf Registration Statements. If the Initial
Shelf Registration Statement or any Subsequent Shelf Registration Statement
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), each of the Issuers shall use their best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof, and in any
event the Issuers shall within 30 days of such cessation of effectiveness amend
the Shelf Registration Statement 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 Statement"). If a
Subsequent Shelf Registration Statement is filed, each of the Issuers shall use
their best efforts to cause the Subsequent Shelf Registration Statement to be
declared effective as soon as reasonably 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 Statement"
means the Initial Shelf Registration Statement and any Subsequent Shelf
Registration Statement.
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(c) Supplements and Amendments. The Issuers shall promptly
supplement and amend the Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration Statement, 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 Issuers and the Initial Purchasers agree that the
Holders of Notes will suffer damages if the Issuers fail to fulfill their
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 and Capital Corp. agree to pay, as liquidated damages, additional
interest on the Notes ("Additional Interest") under the circumstances and to the
extent set forth below (each of which shall be given independent effect):
(i) if either the Exchange Offer Registration Statement
or the Initial Shelf Registration Statement has not been filed on or prior
to the Filing Date (unless, with respect to the Exchange Offer Registration
Statement, a Shelf Event described in clause (i) of Section 2(c) shall have
occurred prior to the Filing Date), Additional Interest shall accrue on the
Notes over and above the stated interest in an amount equal to $0.192 per
week (or any part thereof) per $1,000 principal amount of Notes;
(ii) if either the Exchange Offer Registration Statement
or the Initial Shelf Registration Statement is not declared effective by
the SEC on or prior to the Effectiveness Date (unless, with respect to the
Exchange Offer Registration Statement, a Shelf Event described in clause
(i) of Section 2(c) shall have occurred), Additional Interest shall accrue
on the Notes over and above the stated interest in an amount equal to
$0.192 per week (or any part thereof) per $1,000 principal amount of Notes;
and
(iii) if (A) the Issuers have not exchanged Exchange
Securities for all Notes validly tendered and not withdrawn in accordance
with the terms of the Exchange Offer on or prior to the fifth day after the
Expiration Date, or (B) the Exchange Offer Registration Statement ceases to
be effective at any time prior to the Expiration Date, or (C) if
applicable, any Shelf Registration Statement has been declared effective
and such Shelf Registration Statement ceases to be effective at any time
during the Effectiveness Period, then Additional Interest shall accrue on
the Notes over and above the stated interest in an amount equal to $0.192
per week (or any part thereof) per $1,000 principal amount of the Notes for
the first 90 days commencing on (x) the sixth day after the Expiration
Date, in the case of (A) above, or (y) the day the Exchange Offer
Registration Statement ceases to be effective in the case of (B) above, or
(z) the day such Shelf Registration Statement ceases to be effective in the
case of (C) above;
provided, however, that (1) upon the filing of the Exchange Offer Registration
Statement or a Shelf Registration Statement as required hereunder (in the case
of clause (i) of this Section 4(a)), (2) upon the effectiveness of the Exchange
Offer Registration Statement or the Shelf Registration Statement as required
hereunder (in the case of clause (ii) of this Section 4(a)) or (3) upon the
exchange of Exchange Securities for all Notes validly tendered and not withdrawn
(in the case of clause (iii)(A) of this Section 4(a)), or upon the effectiveness
of the Exchange Offer Registration Statement which had ceased to remain
effective (in the case of clause (iii)(B) of this Section 4(a)), or upon the
effectiveness of the Shelf Registration Statement which had ceased to remain
effective (in the case of clause (iii)(C) of this Section 4(a)), Additional
Interest on the Notes as a result of such
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clause (or the relevant subclause thereof), as the case may be, shall cease to
accrue (but any accrued amount shall be payable).
(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 and
Capital Corp. 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. Each obligation to pay Additional
Interest shall be deemed to accrue immediately following the occurrence of the
applicable Event Date. Any accrued Additional Interest amount shall be due and
payable on each interest payment date immediately after the applicable Event
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
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
Statement or Exchange Offer Registration Statement to be filed or declared
effective, or a Shelf Registration Statement or an Exchange Offer Registration
Statement to remain effective, as the case may be, in accordance with this
Section 4.
(c) Each of the Guarantors, jointly and severally, guarantees
the payment of the Additional Interest to the same extent and in the same manner
as the guarantee provisions set forth in the Indenture, which provisions are
incorporated herein by reference mutatis mutandis.
5. REGISTRATION PROCEDURES
In connection with the registration of any Registrable
Securities pursuant to Sections 2 or 3 hereof, each of the Issuers shall use
their best efforts to 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 Issuers shall:
(a) prepare and file with the SEC on or before the Filing
Date, a Registration Statement or Registration Statements as prescribed by
Section 2 or 3, and to use their best efforts to cause each such Registration
Statement to become effective and remain effective as provided herein; provided,
however, that, if (1) such filing is pursuant to Section 3, or (2) a Prospectus
contained in an Exchange Offer 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 Securities during the Applicable
Period, before filing any Registration Statement or Prospectus or any amendments
or supplements thereto, the Issuers shall furnish to and afford the Holders of
the Registrable Securities 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 (at least five
days prior to such filing); the Issuers shall not file any Registration
Statement or Prospectus or any amendments or supplements thereto in respect of
which the Holders must be afforded a reasonable opportunity to review prior to
the filing of such document, if the Holders of a majority in aggregate principal
amount of the Registrable Securities covered by such Registration Statement, or
each such Participating Broker-Dealer, as the case may be, their counsel, or the
managing underwriters, if any, shall reasonably object by notice to the Company
after a reasonable period to review unless the Company is advised by Counsel
that such amendment or supplement is legally required;
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(b) prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement or Exchange Offer
Registration Statement, as the case may be, as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness Period, in
the case of a Shelf Registration Statement, or until the later of the Expiration
Date and the Applicable Period, in the case of the Exchange Offer Registration
Statement; 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 it with respect to
the disposition of all securities covered by such Registration Statement as so
amended or in such Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by a Participating Broker-Dealer
covered by any such Prospectus;
(c) if (1) a Shelf Registration Statement is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Offer 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
Securities 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, promptly (but in
any event within five 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 (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) if at any time when a
prospectus is required by the Securities Act to be delivered in connection with
sales of the Registrable Securities the representations and warranties of any of
the Issuers contained in any agreement (including any underwriting agreement)
contemplated by Section 5(n) below cease to be true and correct; (iv) of the
receipt by any of the Issuers 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 Securities 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; (v) of the
occurrence 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; provided, however, that such notification need not
specifically identify such event if notification of the occurrence thereof
would, in the Company's reasonable judgment, involve the disclosure of
confidential non-public information; and (vi) of the Company's reasonable
determination that a post-effective amendment to the Registration Statement
would be appropriate;
(d) if (1) a Shelf Registration Statement is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Offer 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
Securities during the Applicable Period, use their best efforts to prevent the
issuance of any order suspending the effectiveness of
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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 Securities to be sold by any
Participating Broker-Dealer for sale in any jurisdiction, and, if any such order
is issued, to use their best efforts to obtain the withdrawal of any such order
at the earliest possible moment;
(e) if a Shelf Registration Statement 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 or any Participating
Broker-Dealer, (i) promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriters, if any,
such Holders, any Participating Broker-Dealer or their respective counsel
reasonably request to be included therein; (ii) make all required filings of
such prospectus supplement or such post-effective amendment as soon as
reasonably practicable after the Company has received notification of the
matters to be incorporated in such prospectus supplement or post-effective
amendment and (iii) supplement or make amendments to such Registration
Statement;
(f) if (1) a Shelf Registration Statement is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Offer 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
Securities during the Applicable Period, furnish to each selling Holder of
Registrable Securities and to each such Participating Broker-Dealer who so
requests and upon request to their respective counsel and each managing
underwriter, if any, without charge, one conformed copy of the Registration
Statement or Registration Statements and each post-effective amendment thereto,
including financial statements and schedules, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits;
(g) if (1) a Shelf Registration Statement is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Offer 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
Securities 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, each of the Issuers hereby
consents 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 Securities 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 Offer Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange
Securities during the Applicable Period, use their best efforts to register or
qualify, and to 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 Securities, as the case may be, 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 , however, that
where Exchange Securities held by Participating Broker-Dealers or Registrable
Securities are offered other than through an underwritten offering, the Issuers
shall cause their counsel to (i)
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perform Blue Sky investigations and file registrations and qualifications
required to be filed pursuant to this Section 5(h); (ii) use their best efforts
to keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be kept
effective hereunder; and (iii) do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Exchange
Securities held by Participating Broker-Dealers or the Registrable Securities
covered by the applicable Registration Statement, provided, further, however,
that none of the Issuers shall in any case 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;
(i) if a Shelf Registration Statement is filed pursuant to
Section 3, 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 The Depository Trust Company; and enable such
Registrable Securities to be in such denominations and registered in such names
as the managing underwriter or underwriters, if any, or Holders may reasonably
request;
(j) use their best efforts to cause the Registrable Securities
covered by the Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriters, if any, to consummate the
disposition of such Registrable Securities, except as may be required solely as
a consequence of the nature of such selling Holder's business, in which case the
Issuers will cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals;
(k) if (1) a Shelf Registration Statement is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Offer 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
Securities during the Applicable Period, upon the occurrence of any event
contemplated by paragraph 5(c)(v) or 5(c)(vi) above, as promptly as practicable
prepare and (subject to Section 5(a) above) file with the SEC, solely at the
expense of the Issuers, 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 Securities 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; provided, however, that the Issuers
shall not be required to amend or supplement a Registration Statement, any
related Prospectus or any document incorporated therein by reference, in the
event that, and for a period not to exceed an aggregate of 30 days in any
calendar year if, (i) an event occurs and is continuing as a result of which a
Shelf Registration Statement would, in the Company's good faith judgment,
contain an untrue statement of a material fact or omit to state 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) (a) the
Company determines in its good faith judgment that the disclosure of such event
at such time would have a material adverse effect on the business, operations or
prospects of the Company or (b) the disclosure otherwise relates to a pending
material business transaction that has not been publicly disclosed;
(l) use their best efforts to cause the Registrable Securities
covered by a Registration Statement or the Exchange Securities, as the case may
be, to be rated with the appropriate rating agencies, if so
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requested by the Holders of a majority in aggregate principal amount of
Registrable Securities covered by such Registration Statement or a Participating
Broker-Dealer selling Exchange Securities, as the case may be, or the managing
underwriters, if any;
(m) prior to the effective date of the first Registration
Statement relating to the Registrable Securities, (i) provide the Trustee with
printed certificates for the Registrable Securities in a form eligible for
deposit with The Depository Trust Company; and (ii) provide a CUSIP number for
the Registrable Securities;
(n) in connection with an underwritten offering of Registrable
Securities pursuant to a Shelf Registration Statement, 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 and covenants with, the underwriters, with respect to the
business of the Company and its subsidiaries and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings, and confirm the same if and when
reasonably requested; (ii) obtain the written opinions of counsel to the Issuers
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) use their
best efforts to obtain "cold comfort" letters and updates thereof in form and
substance reasonably satisfactory to the managing underwriters from the
independent certified public accountants of the Issuers (and, if necessary, any
other independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company or any of its subsidiaries 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
"cold comfort" letters in connection with underwritten offerings and such other
matters as reasonably requested by underwriters; and (iv) if an underwriting
agreement is entered into, the same shall contain indemnification provisions and
procedures comparable to those set forth in Section 7 hereof (or such other
provisions and procedures reasonably acceptable to the 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, all of which shall be
done at each closing under such underwriting agreement, or as and to the extent
required thereunder;
(o) if (1) a Shelf Registration Statement is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Offer 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
Securities during the Applicable Period, subject to the prior receipt by the
Company of undertakings to use reasonable efforts to preserve the
confidentiality of any information disclosed by the Issuers pursuant hereto in
form and substance reasonably satisfactory to the Company, 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 hours, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries
(collectively, the "Records") as shall be necessary to enable them to exercise
any applicable due diligence responsibilities, and cause the officers, directors
and employees of the Company and its subsidiaries to supply all information in
each case requested by any such Inspector in connection with such Registration
Statement;
14
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provided, however, that records which the Company determines, in good faith, to
be confidential and any Records which the Company notifies the Inspectors are
confidential shall not be disclosed by the Inspectors unless (i) the disclosure
of such Records is necessary to avoid or correct a misstatement or omission in
such Registration Statement; (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction;
(iii) the information in such Records has been made generally available to the
public; or (iv) release thereof is necessary or advisable in connection with any
action, suit or proceeding involving any Holder or other Inspector; provided,
further, however, that prior notice shall be provided as soon as practicable to
the Company of the potential disclosure of any information by such Inspector
pursuant to clauses (i), (ii), (iii) or (iv) of this sentence to permit the
Company to obtain a protective order (or waive the provisions of this paragraph
(o)) and that such Inspector shall take such actions as are reasonably necessary
to protect the confidentiality of such information (if practicable) to the
extent such action is otherwise not inconsistent with, an impairment of or in
derogation of the rights and interests of the Holder or any Inspector; 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 Issuers
unless and until such information is generally available to the public; each
selling Holder of such Registrable Securities and each such Participating
Broker-Dealer will be required to further agree that it will, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction, give
notice to the Company and allow the Company to undertake appropriate action to
prevent disclosure of the Records deemed confidential at the Company's sole
expense;
(p) provide for an indenture trustee for the Registrable
Securities or the Exchange Securities, as the case may be, and cause the
Indenture or the trust indenture provided for in Section 2(a), as the case may
be, to be qualified under the TIA not later than the effective date of the
Exchange Offer or the first Registration Statement relating to the Registrable
Securities; and in connection therewith, cooperate with the trustee under any
such indenture and the holders of the Registrable Securities to effect such
changes to such indenture as may be required for such indenture to be so
qualified in accordance with the terms of the TIA; and execute, and use their
best efforts to cause such trustee to execute, all documents as may be required
to effect such changes, and all other forms and documents required to be filed
with the SEC to enable such indenture to be so qualified in a timely manner;
(q) comply with all applicable rules and regulations of the
SEC to the extent and so long as they are applicable to the Exchange Offer
Registration Statement or the Shelf Registration Statement and make generally
available to their securityholders earning statements satisfying the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than 45 days after the end
of any 12-month period (or 90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable 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 Registration Statement, which statements
shall cover said 12-month periods;
(r) upon consummation of an Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Issuers in customary form,
relating to the Exchange Securities or the Private Exchange Securities, as the
case may be, addressed to the Trustee for the benefit of all Holders of
Registrable Securities participating in the Exchange Offer or the Private
Exchange, as the case may be, and which includes an opinion that (i) each of the
Issuers have duly authorized, executed and delivered the Exchange Securities and
Private Exchange Securities, the Guarantees to be endorsed thereon and the
related indenture; and (ii) each of the Exchange Securities or the Private
Exchange Securities, as the case may be, the Guarantees endorsed thereon and the
related indenture and guarantees thereunder constitute valid and binding
obligations of each of the Issuers
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party thereto, enforceable against each of the Issuers party thereto in
accordance with their respective terms (with customary exceptions);
(s) 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 Securities or the Private Exchange Securities, as the case may be,
▇▇▇▇, or caused to be marked, on such Registrable Securities that such
Registrable Securities are being cancelled in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be; in no event
shall such Registrable Securities be marked as paid or otherwise satisfied;
(t) 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"); and
(u) use their best efforts to take all other steps necessary
to effect the registration of the Registrable Securities covered by a
Registration Statement contemplated hereby.
The Issuers may require each seller of Registrable Securities
or Participating Broker-Dealer as to which any registration is being effected to
furnish to the Issuers such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Securities or Exchange
Securities to be sold by such Participating Broker-Dealer, as the case may be,
as the Issuers may, from time to time, reasonably request. The Issuers may
exclude from such registration the Registrable Securities or Exchange Securities
of any selling Holder or Participating Broker-Dealer, as the case may be, who
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
Each Holder of Registrable Securities and each Participating
Broker-Dealer agrees by acquisition of such Registrable Securities or Exchange
Securities to be sold by such Participating Broker-Dealer, as the case may be,
that, upon receipt of any notice from any Issuer of the happening of any event
of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi), such
Holder will forthwith discontinue disposition of such Registrable Securities
covered by such Registration Statement or Prospectus or Exchange Securities 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(k), 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 that any
Issuer shall give any such notice, each of the Effectiveness Period and the
Applicable Period shall be extended by the number of days during such periods
from and including the date of the giving of such notice to and including the
date when each seller of Registrable Securities covered by such Registration
Statement or Exchange Securities to be sold by such Participating Broker-Dealer,
as the case may be, shall have received (x) the copies of the supplemented or
amended Prospectus contemplated by Section 5(k) hereof or (y) the Advice.
6. REGISTRATION EXPENSES
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers shall be borne by the Issuers
whether or not the Exchange Offer Registration Statement or a Shelf Registration
Statement 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
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Sky laws (including, without limitation, reasonable fees and disbursements of
counsel) in such jurisdictions (x) where the holders of Registrable Securities
are located, in the case of the Exchange Securities, or (y) as provided in
Section 5(h), in the case of Registrable Securities to be sold in a public
offering or Exchange Securities to be sold by a Participating Broker-Dealer
during the Applicable Period)); (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities or
Exchange Securities in a form eligible for deposit with The Depository Trust
Company and of printing prospectuses if the printing of prospectuses is
requested by the managing underwriters, if any, or, in respect of Registrable
Securities or Exchange Securities 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 a Participating Broker-Dealer selling Exchange Securities, as the
case may be); (iii) messenger, telephone and delivery expenses incurred by the
Issuers; (iv) fees and disbursements of counsel for the Issuers and reasonable
fees and disbursements of special counsel for the sellers of Registrable
Securities (subject to the provisions of Section 6(b)); (v) fees and
disbursements of all independent certified public accountants referred to in
Section 5(n)(iii) (including, without limitation, the expenses of any special
audit and "cold comfort" letters required by or incident to such performance);
(vi) the reasonable fees and expenses of any "qualified independent underwriter"
or other independent appraiser participating in an offering pursuant to Rule
2710 or Rule 2720 of the Conduct Rules of the NASD; (vii) rating agency fees;
(viii) the fees and expenses incurred by the Issuers in connection with the
listing of the Registrable Securities on any securities exchange; and (ix) 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.
(b) In connection with any Shelf Registration Statement
hereunder, the Issuers shall reimburse the Holders of the Registrable Securities
being registered in such registration for the reasonable 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 and other reasonable
out-of-pocket expenses of the Holders of Registrable Securities incurred in
connection with the registration of the Registrable Securities.
7. INDEMNIFICATION
Each of the Issuers, jointly and severally, agrees to
indemnify and hold harmless each Holder of Registrable Securities, each
Participating Broker-Dealer selling Exchange Securities during the Applicable
Period and Chase Securities Inc., in its capacity as Market Maker, the
affiliates, officers, directors, employees, representatives and agents 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 Issuers
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
therein, with respect to the Prospectus, in the 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 such Holder of Registrable Securities or
17
-16-
Participating Broker-Dealer, as the case may be, furnished to the Company in
writing by such Holder of Registrable Securities or Participating Broker-Dealer,
as the case may be, expressly for use therein; provided, however, that the
foregoing indemnity with respect to any preliminary prospectus shall not inure
to the benefit of any Holder of Registrable Securities or Participating
Broker-Dealer, as the case may be (or to the benefit of any officer or director
of, or of any Person controlling, such Holder of Registrable Securities or
Participating Broker-Dealer) from whom the Person asserting any such losses,
claims, damages or liabilities purchased Registrable Securities or Exchange
Securities, as the case may be, to the extent that such untrue statement or
omission or alleged untrue statement or omission made in such preliminary
prospectus is eliminated or remedied in the related Prospectus (as amended or
supplemented if the Issuers shall have furnished any amendments or supplements
thereto) and such Prospectus does not contain any other untrue statement or
omission or alleged untrue statement or omission of a material fact and, to the
extent required by applicable law, a copy of the related Prospectus (as so
amended or supplemented) shall not have been furnished to such Person at or
prior to the sale of such Registrable Securities or Exchange Securities, as the
case may be, to such Person, unless such failure to furnish was a result of
non-compliance by the Issuers with Section 5(g).
Each Holder of Registrable Securities, the Market Maker and
each Participating Broker-Dealer selling Exchange Securities during the
Applicable Period will be required to agree, severally and not jointly, to
indemnify and hold harmless each of the Issuers, its directors, officers,
employees, representatives and agents who sign the Registration Statement and
each Person who controls any Issuer 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 Issuers to each Participant, but only with
reference to information relating to such Holder of Registrable Securities,
Market Maker or Participating Broker-Dealer, as the case may be, furnished to
the Company in writing by or on behalf of such Holder of Registrable Securities,
Market Maker or Participating Broker-Dealer, as the case may be, expressly for
use in any Registration Statement or Prospectus, any amendment or supplement
thereto, or any preliminary prospectus. The liability of any such Holder of
Registrable Securities, Market Maker or Participating Broker-Dealer, as the case
may be, under this paragraph shall in no event exceed the proceeds received by
such Holder of Registrable Securities, Market Maker or Participating
Broker-Dealer, as the case may be, from sales of Registrable Securities or
Exchange Securities, as the case may be, 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 incurred by such counsel related to such
proceeding; provided, however, 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 the Indemnifying
Person was otherwise unaware that such suit, action, proceeding, claim, or
demand shall have been brought or asserted and such failure actually materially
prejudices the Indemnifying Person (through the forfeiture of substantive rights
or defenses)). In any such proceeding, any Indemnified Person shall have the
right to retain its own counsel, but, other than in circumstances involving a
conflict among Indemnified Persons, 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 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 an actual or potential
conflict of interest. It is understood that, other than in circumstances
involving a conflict among Indemnified Persons, 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
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addition to any local counsel) for 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 the Holders of
Registrable Securities or Participating Broker-Dealers selling Exchange
Securities during the Applicable Period, as the case may be, who sold a majority
in interest of Registrable Securities or Exchange Securities, as the case may
be, sold by all such Holders of Registrable Securities or Participating
Broker-Dealers, as the case may be. Any such separate firm for the Issuers, its
directors, officers, employees, representatives and agents and such control
Persons of the Issuers 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 or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Person
shall, without the prior written consent of the Indemnified Person, (which
consent shall not be unreasonably withheld or deleted) 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 party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional written
release of such Indemnified Person in form and substance satisfactory to the
Indemnified Persons from all liability on claims that are the subject matter of
such proceeding and does not contain an admission of fault or culpability.
If the indemnification provided for in the first and second
paragraphs of this Section 7 is for any reason unavailable to, or insufficient
to hold harmless, an Indemnified Person in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person under
such paragraphs, in lieu of indemnifying such Indemnified Person thereunder and
in order to provide for just and equitable contribution, 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
(i) the relative benefits received by the Indemnifying Person or Persons on the
one hand and the Indemnified Person or Persons on the other from the initial
offering of the Notes or (ii) if the allocation provided by the foregoing clause
(i) is not permitted by applicable law, not only such relative benefits but also
the relative fault of the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof) as well as any
other relevant equitable considerations. The relative benefits received by the
Issuers on the one hand and the Holders of Registrable Securities or
Participating Broker-Dealers selling Exchange Securities during the Applicable
Period, as the case may be, on the other shall be deemed to be in the same
proportion as the total proceeds from the initial offering (net of discounts and
commissions but before deducting expenses) of the Notes received by the Issuers
bears to the total proceeds received by such Holders of Registrable Securities
or Participating Broker-Dealers, as the case may be, from the sale of
Registrable Securities or Exchange Securities, as the case may be. The relative
fault of the parties shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Issuers, on the one hand, or such Holder of Registrable
Securities or Participating Broker-Dealer, as the case may be, on the other, the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances.
The parties 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
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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 Holder of Registrable
Securities or Participating Broker-Dealer be required to contribute any amount
in excess of the amount by which proceeds received by such Holder of
Registrable Securities or Participating Broker-Dealer, as the case may be, from
sales of Registrable Securities or Exchange Securities, as the case may be,
exceeds the amount of any damages that such Holder of Registrable Securities or
Participating Broker-Dealer, as the case may be, 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
Each of the Issuers, for so long as the Registrable Securities
remain outstanding, covenants that it will file the reports required to be filed
by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner and, if at any time
any of the Issuers is not required to file such reports, it 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. Each of the Issuers further covenants that it
will take such further action as any Holder of Registrable Securities may
reasonably request, 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 Rule 144 and Rule 144A
under the Securities Act.
9. UNDERWRITTEN REGISTRATIONS
If any of the Registrable Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the 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 (however the terms applicable to each Holder shall be identical in
all respects) and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements applicable to all Holders.
10. MARKET MAKING
(a) The Issuers will, for the sole benefit of Chase Securities
Inc. (the "Market Maker"), and for so long as any of the Notes are outstanding
and the Market Maker or any of its Affiliates (as defined in the rules and
regulations of the SEC under the Securities Act) owns any equity securities of
the Company and proposes to make a market in the Notes as part of its business
in the ordinary course:
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(i) (A) Periodically amend the Registration Statement so that
the information contained in the Registration Statement complies with
the requirements of Section 19(a) under the Securities Act; (B) if
requested by the Market Maker, within 45 days following the end of the
Company's most recent fiscal quarter, file a supplement to the
Prospectus which sets forth the financial results of the Company for
the previous quarter; (C) amend the Registration Statement or
supplement the Prospectus when necessary to reflect any material
changes in the information provided therein; and (D) amend the
Registration Statement when required to do so in order to comply with
Section 10(a)(3) of the Securities Act; provided, however, that (1)
prior to filing any post-effective amendment to the Registration
Statement or any supplement to the Prospectus, the Company will furnish
to the Market Maker copies of all such documents proposed to be filed,
which documents will be subject to the review of the Market Maker and
its counsel, (2) the Issuers will not file any post-effective amendment
to the Registration Statement or any supplement to the Prospectus to
which the Market Maker and its counsel shall reasonably object by
notice to the Company after a reasonable period to review unless the
Company is advised by counsel that such amendment or supplement is
legally required and (3) the Company will provide the Market Maker and
its counsel with copies of each amendment or supplement filed.
(ii) Notify the Market Maker, and (if requested by the Market
Maker) confirm such advice in writing, (A) when any Prospectus
supplement or amendment or post-effective amendment to the Registration
Statement has been filed, and, with respect to any post-effective
amendment, when the same has become effective; (B) of any request by
the SEC for any post-effective amendment to the Registration Statement,
any supplement or amendment to the Prospectus or for additional
information; (C) the issuance by the SEC of any stop order suspending
the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose; (D) of the receipt by any Issuer 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 proceedings for such purpose; (E) of the occurrence of any event
which makes any statement made in the Registration Statement, the
Prospectus or any amendment or supplement thereto untrue or which
requires the making of any changes in the Registration Statement, the
Prospectus or any amendment or supplement thereto, in order to make the
statements therein not misleading; and (F) of any advice from a
nationally recognized statistical rating organization that such
organization has placed the Company under surveillance or review with
negative implications or has determined to downgrade the rating of the
Notes or any other debt obligation of the Company whether or not such
downgrade shall have been publicly announced.
(iii) Furnish to the Market Maker, without charge, (i) at least
one conformed copy of any post-effective amendment to the Registration
Statement; and (ii) as many copies of any amendment or supplement to
the Prospectus as the Market Maker may reasonably request.
(iv) Consent to the use of the Prospectus or any amendment or
supplement thereto by the Market Maker in connection with the offering
and sale of the Notes.
(v) For so long as the Notes shall be outstanding, furnish to
the Market Maker (A) as soon as practicable after the end of each
fiscal year, the number of copies reasonably requested by the Market
Maker of the Company's annual report to stockholders for such year, (B)
as soon as available, the number of copies reasonably requested by the
Market Maker of each report (including, without limitation, Reports on
Forms 10-K, 10-Q and 8-K) or definitive proxy statements of the Company
filed under the Exchange Act or mailed to stockholders and (C) all
public reports and all reports and financial statements furnished by
the Company to the Nasdaq National Market System or any U.S. national
securities exchange or quotation service upon which the Notes may be
listed pursuant to requirements
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of or agreements with such exchange or quotation service or to the SEC
pursuant to the Exchange Act or any rule or regulation of the SEC
thereunder.
(vi) In the event of the issuance of any stop order suspending
the effectiveness of the Registration Statement or of any order
suspending the qualification of the Notes for sale in any jurisdiction,
to use promptly its best efforts to obtain its withdrawal.
(b) The Issuers represent that any post-effective amendments to
the Registration Statement, any amendments or supplements to the Prospectus and
any documents filed under the Exchange Act will, when they become effective or
are filed with the SEC, as the case may be, conform in all respects to the
requirements of the Securities Act and the rules and regulations of the SEC
thereunder and will not, as of the effective date of such post-effective
amendments and as of the filing date of amendments or supplements to the
Prospectus or filings under the Exchange Act 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; provided, however, that
no representation or warranty is made as to information contained in or omitted
from the Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company by the Market Maker
specifically for inclusion therein, which information the parties hereto agree
will be limited to the statements concerning the market-making activities of the
Market Maker to be set forth on the cover page and in the "Plan of Distribution"
section of the Prospectus.
(c) Each time that the Registration Statement or Prospectus
shall be amended or the Prospectus shall be supplemented, the Company shall,
concurrently with such amendment or supplement, furnish the Market Maker and its
counsel with a certificate of its President or any Vice-President and its chief
financial or accounting officer to the effect that:
(i) The Registration Statement has been declared effective and
such amendment has become effective under the Securities Act as of the
date and time specified in such certificate; such amendment to the
Prospectus (or such supplement to the Prospectus, as the case may be)
was filed with the SEC pursuant to the subparagraph of Rule 424(b)
under the Securities Act specified in such certificate on the date
specified therein; and, to the knowledge of such officers, no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose is pending or threatened
by the SEC; and
(ii) Such officers have carefully examined the Registration
Statement and the Prospectus and such amendment or supplement thereto
and, in their opinion, as of the date of such amendment or supplement,
the Registration Statement and the Prospectus, as amended or
supplemented, as the case may be, did not include any untrue statement
of a material fact and did not omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in the case of the Prospectus, in light of the
circumstances in which they were made.
(d) Each time that the Registration Statement or Prospectus
shall be amended, the Issuers, if reasonably requested by the Market Maker,
shall, concurrently with such amendment, furnish to the Market Maker and its
counsel (at the expense of the Market Maker) the written opinion of counsel for
the Issuers satisfactory to the Market Maker to the effect that:
(i) The Registration Statement has been declared effective and
such amendment has become effective under the Securities Act, as of the
date and time specified in such certificate; such amendment to the
Prospectus was filed with the SEC pursuant to the subparagraph Rule
424(b) under
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the Securities Act specified in such opinion on the date specified
therein; and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose is pending or threatened in
writing by the SEC; and
(ii) Counsel for the Issuers has reviewed such amendment and
participated with the officers of the Issuers and independent public
accountants for the Issuers in the preparation of such amendment and
has no reason to believe that the Registration Statement (or any
post-effective amendment thereto), at the time of its effective date,
contained any untrue statement of a material fact, or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus contains any
untrue statement of a material fact or omits 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.
(e) Each time that the Registration Statement or Prospectus
shall be amended to include audited annual financial information, the Company,
if requested by the Market Maker, shall, concurrently with such amendment,
furnish the Market Maker and its counsel with a letter of Price Waterhouse, LLP
(or other independent public accountants for the Issuers of nationally
recognized standing), in form satisfactory to the Market Maker, addressed to the
Market Maker and dated the date of delivery of such letter, (i) confirming that
they are independent public accountants within the meaning of the Securities Act
and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the SEC and
(ii) a letter substantially in the form of the letter delivered to the Initial
Purchasers pursuant to Section5(f) of the Purchase Agreement with such changes
as may be necessary to reflect the amended financial information.
(f) The Issuers hereby agree to indemnify the Market Maker, and
if applicable, contribute to the Market Maker, in accordance with Section 7 of
this Agreement.
(g) The Issuers will comply with the provisions of this Section
10 at their own expense.
(h) The agreements contained in this Section 10 and the
representations, warranties and agreements contained in this Agreement shall
survive all offers and sales of the Notes and shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
(i) For purposes of this Section 10, any reference to the terms
"amend", "amendment" or "supplement" with respect to the Registration Statement
or the Prospectus shall be deemed to refer to and include the filing under the
Exchange Act on or after the date the Registration Statement is converted to
Form S-3 of any document deemed to be incorporated therein by reference.
11. MISCELLANEOUS
(a) Remedies. In the event of a breach by any of the Issuers 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 Issuers
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
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of any action for specific performance in respect of such breach, it shall waive
the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. None of the Issuers has, as of
the date hereof, entered into and each shall not, after the date of this
Agreement, enter into any agreement with respect to any of its securities that
is inconsistent with the rights granted to the Holders of Registrable Securities
in this Agreement or otherwise conflicts with the provisions hereof.
(c) Adjustments Affecting Registrable Securities. The Issuers
shall not, 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.
(d) Joint and Several Obligations; Addition of Guarantors. The
Guarantors agree that their obligations under this agreement are joint and
several. So long as any Registrable Securities remain outstanding, the Company
shall cause each of its subsidiaries that becomes a guarantor of the Notes under
the Indenture to execute and deliver an instrument pursuant to which such
subsidiary agrees to be bound by the provisions of this agreement as a
Guarantor.
(e) Amendments and Waivers. Except as provided in paragraph (d)
above, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, otherwise than with the prior written consent of (A) the
Holders of not less than a majority in aggregate principal amount of the then
outstanding Registrable Securities and (B) in circumstances that would adversely
affect the Participating Broker-Dealers, the Participating Broker-Dealers
holding not less than a majority in aggregate principal amount of the Exchange
Securities held by all Participating Broker-Dealers; provided, however, that
Section 7 and this Section 11(e) may not be amended, modified or supplemented
without the prior written consent of each Holder and each Participating
Broker-Dealer (including any Person who was a Holder or Participating
Broker-Dealer of Registrable Securities or Exchange Securities, as the case may
be, disposed of pursuant to any Registration Statement) affected by any such
amendment, modification or supplement. 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.
(f) 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 Issuers, at Advanced Accessory Systems, ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Chief
Financial Officer.
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
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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.
(g) 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.
(h) 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.
(i) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(j) 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.
(k) 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.
(l) 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.
(m) Securities Held by the Issuers or Its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by any of the
Issuers or its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be deemed to be not outstanding for purposes of
determining whether such consent or approval was given by the Holders of such
required percentage.
[Signature Pages Follow]
25
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
ADVANCED ACCESSORY SYSTEMS, LLC
By:____________________________
Name:
Title:
AAS CAPITAL CORPORATION
By:____________________________
Name:
Title:
AAS HOLDINGS, INC.
By:____________________________
Name:
Title:
SPORTRACK, LLC
By:____________________________
Name:
Title:
VALLEY INDUSTRIES, LLC
By:____________________________
Name:
Title:
CHASE SECURITIES INC.
By:____________________________
Name:
Title:
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FIRST CHICAGO CAPITAL MARKETS, INC.
By:____________________________
Name:
Title: