EXHIBIT 4.2
--------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
Dated as of February 20, 2004
Among
ERICO INTERNATIONAL CORPORATION
and
ERICO PRODUCTS, INC.
as Issuers,
and
DEUTSCHE BANK SECURITIES INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
ABN AMRO INCORPORATED
NATCITY INVESTMENTS, INC.
MCDONALD INVESTMENTS INC
as Initial Purchasers
8 7/8% Senior Subordinated Notes due 2012
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
1. Definitions............................................................ 1
2. Exchange Offer......................................................... 5
3. Shelf Registration..................................................... 9
4. Additional Interest.................................................... 10
5. Registration Procedures................................................ 12
6. Registration Expenses.................................................. 21
7. Indemnification and Contribution....................................... 22
8. Rules 144 and 144A..................................................... 26
9. Underwritten Registrations............................................. 26
10. Miscellaneous.......................................................... 26
-i-
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated
as of February 20, 2004, among ERICO International Corporation, an Ohio
corporation (the "Company"), ERICO Products, Inc. (the "Guarantor", together
with any entity that in the future executes a supplemental indenture pursuant to
which such entity agrees to guarantee the Notes (as hereinafter defined), the
"Guarantors" and, together with the Company, the "Issuers"), and DEUTSCHE BANK
SECURITIES INC, ▇.▇. ▇▇▇▇▇▇ SECURITIES INC., ABN AMRO INCORPORATED, NATCITY
INVESTMENTS, INC. and MCDONALD INVESTMENTS INC. as initial purchasers (the
"Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement by and among the Issuers and the Initial Purchasers, dated February
12, 2004 (the "Purchase Agreement"), which provides for, among other things, the
sale by the Company to the Initial Purchasers of $121,500,000 aggregate
principal amount of the Company's 8 7/8% Senior Subordinated Notes due 2012 (the
"Notes"), guaranteed by the Guarantor (the "Guarantee"). The Notes and the
Guarantee are collectively referenced to herein as the "Securities". 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 any subsequent holder or holders of
the Securities. The execution and delivery of this Agreement is a condition to
the Initial Purchasers' obligation to purchase the Securities 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) hereof.
Advice: See the last paragraph of Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2(b) hereof.
Business Day: Any day that is not a Saturday, Sunday or a day
on which banking institutions in New York are authorized or required by law to
be closed.
Company: See the introductory paragraphs hereto.
-2-
Effectiveness Date: With respect to (i) the Exchange Offer
Registration Statement, the 180th day after the Issue Date and (ii) any Shelf
Registration Statement, the 180th day after the Filing Date with respect
thereto; provided, however, that if the Effectiveness Date would otherwise fall
on a day that is not a Business Day, then the Effectiveness Date shall be the
next succeeding Business Day.
Effectiveness Period: See Section 3(a) hereof.
Event Date: See Section 4(b) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a) hereof.
Exchange Offer: See Section 2(a) hereof.
Exchange Offer Registration Statement: See Section 2(a)
hereof.
Filing Date: (A) With respect to the Exchange Offer
Registration Statement, the 90th day after the Issue Date; and (B) in any other
case (which may be applicable notwithstanding the consummation of the Exchange
Offer), the 90th day after the delivery of a Shelf Notice as required pursuant
to Section 2(c) hereof; provided, however, that if the Filing Date would
otherwise fall on a day that is not a Business Day, then the Filing Date shall
be the next succeeding Business Day.
Guarantee: See the introductory paragraphs hereto.
Guarantor: See the introductory paragraphs hereto.
Guarantors: See the introductory paragraphs hereto.
Holder: Any holder of a Registrable Note or Registrable Notes.
Indenture: The Indenture, dated as of February 20, 2004, by
and among the Issuers and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as
Trustee, pursuant to which the Notes and the Guarantee are being issued, as
amended or supplemented from time to time in accordance with the terms thereof.
Information: See Section 5(o) hereof.
Initial Purchasers: See the introductory paragraphs hereto.
Initial Shelf Registration: See Section 3(a) hereof.
-3-
Inspectors: See Section 5(o) hereof.
Issue Date: February 20, 2004, the date of original issuance
of the Notes.
Issuers: See the introductory paragraphs hereto.
NASD: See Section 5(s) hereof.
Notes: See the introductory paragraphs hereto.
Participant: See Section 7(a) hereof.
Participating Broker-Dealer: See Section 2(b) hereof.
Person: An individual, trustee, corporation, partnership,
limited liability company, joint stock company, trust, unincorporated
association, union, business association, firm or other legal entity.
Private Exchange: See Section 2(b) hereof.
Private Exchange Notes: See Section 2(b) hereof.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A under the Securities Act and any term sheet filed pursuant to Rule 434
under the Securities Act), as amended or supplemented by any prospectus
supplement, 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 introductory paragraphs hereof.
Records: See Section 5(o) hereof.
Registrable Notes: Each Note (and the related Guarantee) upon
its original issuance and at all times subsequent thereto, each Exchange Note
(and the related guarantees) as to which Section 2(c)(iv) hereof is applicable
upon original issuance and at all times subsequent thereto and each Private
Exchange Note (and the related guarantees) upon original issuance thereof and at
all times subsequent thereto, until, in each case, the earliest to occur of (i)
a Registration Statement (other than, with respect to any Exchange Note as to
which Section 2(c)(iv) hereof is applicable, the Exchange Offer Registration
Statement) covering such Note, Exchange Note or Private Exchange Note has been
declared effective by the SEC and such Note, Exchange Note or such Private
Exchange Note (and the related guarantees), as the
-4-
case may be, has been disposed of in accordance with such effective Registration
Statement, (ii) such Note has been exchanged pursuant to the Exchange Offer for
an Exchange Note or Exchange Notes (and the related guarantees) that may be
resold without restriction under state and federal securities laws, (iii) such
Note, Exchange Note or Private Exchange Note (and the related guarantees), as
the case may be, ceases to be outstanding for purposes of the Indenture or (iv)
such Note, Exchange Note or Private Exchange Note (and the related guarantees),
as the case may be, may be resold without restriction pursuant to Rule 144(k)
(as amended or replaced) under the Securities Act.
Registration Statement: Any registration statement of the
Issuers that covers any of the Notes, the Exchange Notes or the Private Exchange
Notes (and the related Guarantee) filed with the SEC under the Securities Act,
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 under the Securities Act.
Rule 144A: Rule 144A under the Securities Act.
Rule 405: Rule 405 under the Securities Act.
Rule 415: Rule 415 under the Securities Act.
Rule 424: Rule 424 under the Securities Act.
SEC: The U.S. Securities and Exchange Commission.
Securities: See the introductory paragraphs hereto.
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) hereof.
Shelf Registration: See Section 3(b) hereof.
Shelf Registration Statement: Any Registration Statement
relating to a Shelf Registration.
Subsequent Shelf Registration: See Section 3(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
-5-
Trustee: The trustee under the Indenture and the trustee (if
any) under any indenture governing the Exchange Notes and Private Exchange Notes
(and the related guarantees).
Underwritten registration or underwritten offering: A
registration in which securities of one or more of the Issuers are sold to an
underwriter for reoffering to the public.
Except as otherwise specifically provided, all references in
this Agreement to acts, laws, statutes, rules, regulations, releases, forms,
no-action letters and other regulatory requirements (collectively, "Regulatory
Requirements") shall be deemed to refer also to any amendments thereto and all
subsequent Regulatory Requirements adopted as a replacement thereto having
substantially the same effect therewith; provided that Rule 144 shall not be
deemed to amend or replace Rule 144A.
2. Exchange Offer.
(a) Unless the Exchange Offer would violate applicable
law or any applicable interpretation of the staff of the SEC, the Issuers shall
file with the SEC, no later than the Filing Date, a Registration Statement (the
"Exchange Offer Registration Statement") on an appropriate registration form
with respect to a registered offer (the "Exchange Offer") to exchange any and
all of the Registrable Notes for a like aggregate principal amount of debt
securities of the Company (the "Exchange Notes"), guaranteed by the Guarantor,
that are identical in all material respects to the Securities, except that (i)
the Exchange Notes shall contain no restrictive legend thereon and (ii) interest
thereon shall accrue from the last date on which interest was paid on the Notes
or, if no such interest has been paid, from the Issue Date, and which are
entitled to the benefits of the Indenture or a trust indenture which is
identical in all material respects to the Indenture (other than such changes to
the Indenture or any such identical trust indenture as are necessary to comply
with the TIA) and which, in either case, has been qualified under the TIA. The
Exchange Offer shall comply with all applicable tender offer rules and
regulations under the Exchange Act and other applicable laws. The Issuers shall
use their reasonable best efforts to (x) cause the Exchange Offer Registration
Statement to be declared effective under the Securities Act on or before the
Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or
longer if required by applicable law) after the date that notice of the Exchange
Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to
the 225th day following the Issue Date.
Each Holder (including, without limitation, each Participating
Broker-Dealer) who participates in the Exchange Offer will be required to
represent to the Issuers in writing at the time of the consummation of the
Exchange Offer (which may be contained in the applicable letter of transmittal)
that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered
are being acquired in the ordinary course of business of the Person receiving
such Exchange Notes, whether or not such recipient is such Holder itself; (ii)
at the time of the commencement or consummation of the Exchange Offer neither
such Holder nor, to the
-6-
actual knowledge of such Holder, any other Person receiving Exchange Notes from
such Holder has an arrangement or understanding with any Person to participate
in the distribution of the Exchange Notes in violation of the provisions of the
Securities Act; (iii) neither the Holder nor, to the actual knowledge of such
Holder, any other Person receiving Exchange Notes from such Holder is an
"affiliate" (as defined in Rule 405) of the Issuers or, if it is an affiliate of
the Issuers, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable and will provide
information to be included in the Shelf Registration Statement in accordance
with Section 5 hereof in order to have their Notes included in the Shelf
Registration Statement and benefit from the provisions regarding Additional
Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual
knowledge of such Holder, any other Person receiving Exchange Notes from such
Holder is engaging in or intends to engage in a distribution of the Exchange
Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has
acquired the Registrable Notes for its own account as a result of market-making
activities or other trading activities and that it will comply with the
applicable provisions of the Securities Act (including, but not limited to, the
prospectus delivery requirements thereunder).
Upon consummation of the Exchange Offer in accordance with
this Section 2, the provisions of this Agreement shall continue to apply, solely
with respect to Registrable Notes that are Private Exchange Notes, Exchange
Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by
Participating Broker-Dealers, and the Issuers shall have no further obligation
to register Registrable Notes (other than Private Exchange Notes and Exchange
Notes as to which clause 2(c)(iv) hereof applies) pursuant to this agreement.
No securities other than the Exchange Notes 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 with respect to the potential "underwriter" status of any
broker-dealer that is the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange
Offer (a "Participating Broker-Dealer"), whether such positions or policies have
been publicly disseminated by the staff of the SEC or such positions or policies
represent the prevailing views of the staff of the SEC. Such "Plan of
Distribution" section shall also expressly permit, to the extent permitted by
applicable policies and regulations of the SEC, the use of the Prospectus by all
Persons subject to the prospectus delivery requirements of the Securities Act,
including, to the extent permitted by applicable policies and regulations of the
SEC, all Participating Broker-Dealers, and include a statement describing the
means by which Participating Broker-Dealers may resell the Exchange Notes in
compliance with the Securities Act.
-7-
The Issuers shall use their reasonable 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 such period of time as is necessary to
comply with applicable law in connection with any resale of the Exchange Notes;
provided, however, that such period shall not be required to exceed 90 days or
such longer period if extended pursuant to the last paragraph of Section 5
hereof (the "Applicable Period").
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Notes acquired by them that 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 Notes
issue and deliver to the Initial Purchasers, in exchange (the "Private
Exchange") for such Notes held by any such Holder, a like principal amount of
notes (the "Private Exchange Notes") of the Issuers, guaranteed by the
Guarantor, that are identical in all material respects to the Exchange Notes
except for the placement of a restrictive legend on such Private Exchange Notes.
The Private Exchange Notes shall be issued pursuant to the same indenture as the
Exchange Notes and bear the same CUSIP number as the Exchange Notes.
In connection with the Exchange Offer, the Issuers shall:
(1) mail, or electronically transmit, or cause to be
mailed, or electronically transmitted, to each Holder of record
entitled to participate in the Exchange Offer a copy of the Prospectus
forming part of the Exchange Offer Registration Statement, together
with an appropriate letter of transmittal and related documents;
(2) use their reasonable best efforts to keep the
Exchange Offer open for not less than 30 days after the date that
notice of the Exchange Offer is mailed, or electronically transmitted
to Holders (or, in each case, longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York;
(4) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York time, on the last
Business Day on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer
and the Private Exchange, if any, the Issuers shall:
-8-
(1) accept for exchange all Registrable Notes validly
tendered and not validly withdrawn pursuant to the Exchange Offer and
the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all
Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver
promptly to each Holder of Notes, Exchange Notes or Private Exchange
Notes, as the case may be, equal in principal amount to the Notes of
such Holder so accepted for exchange; provided that, in the case of any
Notes held in global form by a depositary, authentication and delivery
to such depositary of one or more replacement Notes in global form in
an equivalent principal amount thereto for the account of such Holders
in accordance with the Indenture shall satisfy such authentication and
delivery requirement.
The Exchange Offer and the Private Exchange shall not be
subject to any conditions, other than that (i) the Exchange Offer or Private
Exchange, as the case may be, does not violate applicable law or any applicable
interpretation of the staff of the SEC; (ii) no action or proceeding against the
issuers shall have been instituted or threatened in any court or by any
governmental agency which might materially impair the ability of the Issuers to
proceed with the Exchange Offer or the Private Exchange, and no material adverse
development shall have occurred in any existing action or proceeding with
respect to the Issuers; and (iii) all governmental approvals shall have been
obtained, which approvals the Issuers deem necessary for the consummation of the
Exchange Offer or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture and which, in either case, has been qualified under
the TIA or is exempt from such qualification and shall provide that the Exchange
Notes shall not be subject to the transfer restrictions set forth in the
Indenture. The Indenture or such indenture shall provide that the Exchange
Notes, the Private Exchange Notes and the Notes shall vote and consent together
on all matters as one class and that none of the Exchange Notes, the Private
Exchange Notes or the Securities will have the right to vote or consent as a
separate class on any matter.
(c) If, (i) because of any change in law or in currently
prevailing interpretations of the staff of the SEC, the Issuers are not
permitted to effect the Exchange Offer, (ii) the Exchange Offer is not
consummated within 225 days of the Issue Date, (iii) the Initial Purchasers or
any holder of Private Exchange Notes not eligible to be exchanged for Exchange
Notes in the Exchange Offer so requests in writing to the Company at any time
after the consummation of the Exchange Offer, or (iv) in the case of any Holder
that participates in the Exchange Offer, such Holder does not receive Exchange
Notes on the date of the exchange that may be sold without restriction under
state and federal securities laws (other than due solely to the status of such
Holder as an affiliate of the Issuers within the meaning of the Securities Act)
and so notifies the Company within 30 days after such Holder first becomes
-9-
aware of such restrictions, in the case of each of clauses (i) to and including
(iv) of this sentence, then the Issuers shall promptly deliver to the Holders
and the Trustee written notice thereof (the "Shelf Notice") and shall file a
Shelf Registration pursuant to Section 3 hereof.
3. Shelf Registration.
If at any time a Shelf Notice is delivered as contemplated by
Section 2(c) hereof, then:
(a) Shelf Registration. The Issuers shall as promptly as
practicable 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
Notes (the "Initial Shelf Registration"). The Issuers shall use their reasonable
best efforts to file with the SEC the Initial Shelf Registration on or prior to
the applicable Filing Date. The Initial Shelf Registration shall be on Form S-1
or another appropriate form permitting registration of such Registrable Notes
for resale by Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The Issuers shall not
permit any securities other than the Registrable Notes and the Guarantee to be
included in the Initial Shelf Registration or any Subsequent Shelf Registration
(as defined below).
The Issuers shall use their reasonable best efforts to cause
the Shelf Registration to be declared effective under the Securities Act on or
prior to the Effectiveness Date and, subject to Section 3(d), to keep the
Initial Shelf Registration continuously effective under the Securities Act until
the date that is two years from the Issue Date or such shorter period ending
when all Registrable Notes covered by the Initial Shelf Registration have been
sold in the manner set forth and as contemplated in the Initial Shelf
Registration or, if applicable, a Subsequent Shelf Registration (as may be
extended pursuant to the last paragraph of Section 5 hereof, the "Effectiveness
Period"); provided, however, that the Effectiveness Period in respect of the
Initial Shelf Registration shall be extended to the extent required to permit
dealers to comply with the applicable prospectus delivery requirements of Rule
174 under the Securities Act and as otherwise provided herein and shall be
subject to reduction to the extent that the applicable provisions of Rule 144(k)
are amended or revised to reduce the two year holding period set forth therein.
(b) Withdrawal of Stop Orders; Subsequent Shelf
Registrations. If the Initial Shelf Registration or any Subsequent Shelf
Registration ceases to be effective for any reason at any time during the
Effectiveness Period (other than because of the sale of all of the Notes
registered thereunder), the Issuers shall use their reasonable best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof,
and in any event shall within 30 days of such cessation of effectiveness amend
such Shelf Registration Statement in a manner 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
Notes covered by and not sold under the Initial Shelf Registration or an earlier
Subsequent
-10-
Shelf Registration (each, a "Subsequent Shelf Registration"). If a Subsequent
Shelf Registration is filed, the Issuers shall use their reasonable best efforts
to cause the Subsequent Shelf Registration to be declared effective under the
Securities Act as soon as practicable after such filing and to keep such
subsequent Shelf Registration continuously effective for a period equal to the
number of days in the Effectiveness Period less the aggregate number of days
during which the Initial Shelf Registration or any Subsequent Shelf Registration
was previously continuously effective. As used herein the term "Shelf
Registration" means the Initial Shelf Registration and any Subsequent Shelf
Registration.
(c) Supplements and Amendments. The Issuers shall
promptly supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration, if required by the Securities Act, or if reasonably
requested by the Holders of a majority in aggregate principal amount of the
Registrable Notes (or their counsel) covered by such Registration Statement with
respect to the information included therein with respect to one or more of such
Holders, or by any underwriter of such Registrable Notes with respect to the
information included therein with respect to such underwriter.
(d) Blackout Period. Notwithstanding anything to the
contrary in this Agreement, the Company, upon notice to the Holders of
Registrable Notes, may suspend the use of the Prospectus included in any Shelf
Registration Statement in the event that and for a period of time (the "Blackout
Period") not to exceed an aggregate of 60 days in any twelve month period if (1)
the Board of Directors of the Company determines that the disclosure of an event
at such time could reasonably be expected to have a material adverse effect on
the business, operations or prospects of the Company or (2) the disclosure
otherwise relates to a material business transaction which has not been publicly
disclosed and the Board of Directors of the Company determines that any such
disclosure would jeopardize the success of such transaction; provided, that,
upon the termination of such Blackout Period, the Company promptly shall notify
the Holders of Registrable Notes that such Blackout Period has been terminated.
4. Additional Interest.
(a) The Issuers and the Initial Purchasers agree that the
Holders 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 Issuers
agree to pay, jointly and severally, 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 (A) neither the Exchange Offer Registration
Statement nor the Initial Shelf Registration has been filed on or prior
to the Filing Date applicable thereto or (B) notwithstanding that the
Issuers have consummated or will consummate the Ex-
-11-
change Offer, the Issuers are required to file a Shelf Registration and
such Shelf Registration is not filed on or prior to the Filing Date
applicable thereto, then, commencing on the day after any such Filing
Date, Additional Interest shall accrue on the principal amount of the
Notes at a rate of 0.25% per annum for the first 90 days immediately
following such applicable Filing Date, and such Additional Interest
rate shall increase by an additional 0.25% per annum at the beginning
of each subsequent 90-day period; or
(ii) if (A) neither the Exchange Offer Registration
Statement nor the Initial Shelf Registration is declared effective by
the SEC on or prior to the Effectiveness Date applicable thereto or (B)
notwithstanding that the Issuers have consummated or will consummate
the Exchange Offer, the Issuers are required to file a Shelf
Registration and such Shelf Registration is not declared effective by
the SEC on or prior to the Effectiveness Date applicable to such Shelf
Registration, then, commencing on the day after such Effectiveness
Date, Additional Interest shall accrue on the principal amount of the
Notes at a rate of 0.25% per annum for the first 90 days immediately
following the day after such Effectiveness Date, and such Additional
Interest rate shall increase by an additional 0.25% per annum at the
beginning of each subsequent 90-day period; or
(iii) if (A) the Issuers have not exchanged Exchange Notes
for all Notes validly tendered in accordance with the terms of the
Exchange Offer on or prior to the 45th day after the Registration
Statement was declared effective or (B) if applicable, a Shelf
Registration has been declared effective and such Shelf Registration
ceases to be effective at any time during the Effectiveness Period
(other than during any Blackout Period relating to such Shelf
Registration and as permitted in the proviso in Section 5(b)), then
Additional Interest shall accrue on the principal amount of the Notes
at a rate of 0.25% per annum for the first 90 days commencing on the
(x) 46th day after the Shelf Registration was declared effective, in
the case of (A) above, or (y) the day such Shelf Registration ceases to
be effective in the case of (B) above, and such Additional Interest
rate shall increase by an additional 0.25% per annum at the beginning
of each such subsequent 90-day period;
provided, however, (1) that the Additional Interest rate on the Notes may not
accrue under more than one of the foregoing clauses (i) - (iii) at any one time
and at no time shall the aggregate amount of additional interest accruing exceed
in the aggregate 1.5% per annum and (2) Additional Interest shall not accrue
under clause (iii)(B) above during the continuation of a Blackout Period;
provided, further, however, that (1) upon the filing of the applicable Exchange
Offer Registration Statement or the applicable Shelf Registration as required
hereunder (in the case of clause (i) above of this Section 4), (2) upon the
effectiveness of the Exchange Offer Registration Statement or the applicable
Shelf Registration Statement as required hereunder (in the case of clause (ii)
of this Section 4), or (3) upon the exchange of the
-12-
Exchange Notes for all Notes tendered (in the case of clause (iii)(A) of this
Section 4), or upon the effectiveness of the applicable Shelf Registration
Statement which had ceased to remain effective (in the case of (iii)(B) of this
Section 4), Additional Interest on the Notes in respect of which such events
relate as a result of such clause (or the relevant subclause thereof), as the
case may be, shall cease to accrue.
(b) The Issuers shall notify the Trustee within two
Business Days after each and every date on which an event occurs in respect of
which Additional Interest is required to be paid (an "Event Date"). Any amounts
of Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this
Section 4 will be payable in cash semiannually on each March 1 and September 1
(to the holders of record on the February 15 and August 15 immediately preceding
such dates), commencing with the first such date occurring after any such
Additional Interest commences to accrue. The amount of Additional Interest will
be determined by multiplying the applicable Additional Interest rate by the
principal amount of the Registrable Notes, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360 day year
comprised of twelve 30 day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360. No
Additional Interest shall accrue with respect to Notes that are not Registrable
Notes.
(c) The parties hereto agree that the Additional Interest
provided for in this Section 4 constitutes the sole damages that will be
available to Holders of Registrable Notes by reason of the occurrence of any of
the events described in Section 4(a)(i)-(iii) hereof.
5. Registration Procedures.
In connection with the filing of any Registration Statement
pursuant to Section 2 or 3 hereof, the Issuers shall effect such registrations
to permit the sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Issuers hereunder each
of the Issuers shall:
(a) Prepare and file with the SEC on or prior to the
applicable Filing Date a Registration Statement or Registration Statements as
prescribed by Section 2 or 3 hereof, and use its reasonable 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 hereof or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period relating thereto from whom
any Issuer has received written notice that it will be a Participating
Broker-Dealer in the Exchange Offer, 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 Notes covered by such Registration
Statement (with respect to
-13-
a Registration Statement filed pursuant to Section 3 hereof) or each such
Participating Broker-Dealer (with respect to any such Registration Statement),
as the case may be, 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 (in each case at least five Business Days prior to
such filing). The Issuers shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto if the Holders of a majority
in aggregate principal amount of the Registrable Notes covered by such
Registration Statement, their counsel, or the managing underwriters, if any,
shall reasonably object on a timely basis.
(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, the
Applicable Period or until consummation of the Exchange Offer, as the case may
be; cause the related Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed pursuant to Rule
424; and comply with the provisions of the Securities Act and the Exchange Act
applicable to it with respect to the disposition of all securities covered by
such Registration Statement as so amended or in such Prospectus as so
supplemented and with respect to the subsequent resale of any securities being
sold by an Participating Broker-Dealer covered by any such Prospectus; provided
that, to the extent relating to a Shelf Registration Statement, none of the
foregoing shall be required during a Blackout Period. Other than during any
Blackout Period with respect to a Shelf Registration Statement, the Issuers
shall be deemed not to have used their reasonable best efforts to keep a
Registration Statement effective if any Issuer voluntarily takes any action that
would result in selling Holders of the Registrable Notes covered thereby or
Participating Broker-Dealers seeking to sell Exchange Notes not being able to
sell such Registrable Notes or such Exchange Notes during that period unless
such action is required by applicable law or permitted by this Agreement.
(c) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period relating thereto from whom
any Issuer has received written notice that it will be a Participating
Broker-Dealer in the Exchange Offer and any other information required under
Item 507 of Regulation S-K under the Exchange Act, notify the selling Holders of
Registrable Notes (with respect to a Registration Statement filed pursuant to
Section 3 hereof), or each such Participating Broker-Dealer (with respect to any
such Registration Statement), as the case may be, their counsel and the managing
underwriters, if any, promptly (but in any event within two Business Days), and
confirm such notice in writing whereupon the Initial Purchasers, the Holders and
any Participating Broker-Dealers shall immediately cease using the Exchange
Offer Registration Statement or the Prospectus, (i) when a Prospectus or any
Prospectus supplement or post-effective amend-
-14-
ment has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act (including in such notice a written statement that any Holder
may, upon request, obtain, at the sole expense of the Issuers, 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 Notes or resales of Exchange Notes by Participating
Broker-Dealers the representations and warranties of the Issuers contained in
any agreement (including any underwriting agreement) contemplated by Section
5(n) hereof cease to be true and correct, (iv) of the receipt by any Issuer of
any notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, (v) of the happening of any
event, the existence of any condition 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 or
amendments or supplements to such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the Prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading provided, that
such notice need not identify the reasons for such event, condition or
information that requires such exchange in the Registration Statement or
Prospectus, and (vi) of the Issuers' determination that a post-effective
amendment to a Registration Statement would be appropriate.
(d) Use its reasonable best efforts to prevent the
issuance of any order suspending the effectiveness of a Registration Statement
or of any order preventing or suspending the use of a Prospectus or suspending
the qualification (or exemption from qualification) of any of the Registrable
Notes or the Exchange Notes to be sold by any Participating Broker-Dealer, for
sale in any jurisdiction, and, if any such order is issued, to use its
reasonable best efforts to obtain the withdrawal of any such order at the
earliest practicable moment.
(e) Subject to Section 3(d), if a Shelf Registration is
filed pursuant to Section 3 and if requested during the Effectiveness Period by
the managing underwriter or underwriters (if any), the Holders of a majority in
aggregate principal amount of the Registrable Notes being sold in connection
with an underwritten offering or any Participating Broker-
-15-
Dealer, (i) as promptly as practicable incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriter or
underwriters (if any), such Holders, any Participating Broker-Dealer or counsel
for any of them reasonably request to be included therein, (ii) make all
required filings of such prospectus supplement or such post-effective amendment
as soon as practicable after the Company has received notification of the
matters to be incorporated in such prospectus supplement or post-effective
amendment, and (iii) supplement or make amendments to such Registration
Statement.
(f) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, furnish to each selling
Holder of Registrable Notes (with respect to a Registration Statement filed
pursuant to Section 3 hereof) and to each such Participating Broker-Dealer who
so requests (with respect to any such Registration Statement) and to their
respective counsel and each managing underwriter, if any, at the sole expense of
the Issuers, one conformed copy of the Registration Statement or Registration
Statements and each post-effective amendment thereto, including financial
statements and schedules, and, if requested, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, deliver to each selling
Holder of Registrable Notes (with respect to a Registration Statement filed
pursuant to Section 3 hereof), or each such Participating Broker-Dealer (with
respect to any such Registration Statement), as the case may be, their
respective counsel, and the underwriters, if any, at the sole expense of the
Issuers, as many copies of the Prospectus or Prospectuses (including each form
of preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the last paragraph of this Section 5, the Issuers
hereby consent to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, and the underwriters or agents,
if any, and dealers, if any, in connection with the offering and sale of the
Registrable Notes covered by, or the sale by Participating Broker-Dealers of the
Exchange Notes pursuant to, such Prospectus and any amendment or supplement
thereto.
(h) Prior to any public offering of Registrable Notes or
any delivery of a Prospectus contained in the Exchange Offer Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, use its reasonable best efforts to register or
qualify, and to cooperate with the selling Holders of Registrable Notes or each
such Participating Broker-Dealer, as the case may be, the managing underwriter
-16-
or underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Notes for offer and sale under the securities
or Blue Sky laws of such jurisdictions within the United States as any selling
Holder, Participating Broker-Dealer, or the managing underwriter or underwriters
reasonably request in writing; provided, however, that where Exchange Notes held
by Participating Broker-Dealers or Registrable Notes are offered other than
through an underwritten offering, the Issuers agree to cause their counsel to
perform Blue Sky investigations and file registrations and qualifications
required to be filed pursuant to this Section 5(h), keep each such registration
or qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Exchange Notes held by Participating Broker-Dealers or the
Registrable Notes covered by the applicable Registration Statement; provided,
however, that no Issuer shall be required to (A) qualify generally to do
business in any jurisdiction where it is not then so qualified, (B) take any
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) subject itself to taxation
in excess of a nominal dollar amount in any such jurisdiction where it is not
then so subject.
(i) If a Shelf Registration is filed pursuant to Section
3 hereof, cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes to be
sold, which certificates shall not bear any restrictive legends and shall be in
a form eligible for deposit with The Depository Trust Company; and enable such
Registrable Notes to be in such denominations (subject to applicable
requirements contained in the Indenture) and registered in such names as the
managing underwriter or underwriters, if any, or Holders may request a
reasonable period of time prior to sales of the Registrable Notes pursuant to
any Registration Statement.
(j) Use its reasonable best efforts to cause the
Registrable Notes covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof or the underwriter or underwriters, if
any, to consummate the disposition of such Registrable Notes, 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 respects with the
filing of such Registration Statement and the granting of such approvals.
(k) Except as permitted by the proviso in Section 5(b),
if a (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed pursuant
to Section 2 hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, upon the occurrence of any event contemplated by paragraph
5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare and (subject to
Sec-
-17-
tion 5(a) hereof) file with the SEC, at the sole 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 Notes being
sold thereunder (with respect to a Registration Statement filed pursuant to
Section 3 hereof) or to the purchasers of the Exchange Notes to whom such
Prospectus will be delivered by a Participating Broker-Dealer (with respect to
any such Registration Statement), 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.
(l) Use its reasonable best efforts to cause the
Registrable Notes covered by a Registration Statement or the Exchange Notes, as
the case may be, to be rated with the appropriate rating agencies (unless such
Notes are already so rated), if so requested by the Holders of a majority in
aggregate principal amount of Registrable Notes covered by such Registration
Statement or the Exchange Notes, as the case may be, or the managing underwriter
or underwriters, if any.
(m) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes in a form eligible for deposit with The
Depository Trust Company and (ii) provide a CUSIP number for the Registrable
Notes.
(n) In connection with any underwritten offering of
Registrable Notes pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of debt securities similar
to the Securities, and take all such other actions as are reasonably requested
by the managing underwriter or underwriters in order to expedite or facilitate
the registration or the disposition of such Registrable Notes and, in such
connection, (i) make such representations and warranties to, and covenants with,
the underwriters with respect to the business of the Issuers (including any
acquired business, properties or entity, if applicable), and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings of debt securities similar to
the Securities, and confirm the same in writing if and when requested; (ii)
obtain the written opinions of counsel to the Issuers, and written updates
thereof in form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters, addressed to the underwriters covering the matters
customarily covered in opinions reasonably requested in underwritten offerings;
(iii) obtain "cold comfort" letters and updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or underwriters
from the independent certified public accountants of the Issuers (and, if
necessary, any other independent certified public accountants of the Issuers, or
of any business acquired by the Issuers, for which financial statements and
financial data are, or are required to be, included or incorporated by reference
in the Reg-
-18-
istration Statement), addressed to each of the underwriters, such letters to be
in customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings of debt securities
similar to the Securities; provided, that such letters will not be delivered to
any such Holder or underwriter that fails to make such representations as may be
reasonably required by such independent certified public accountants; and (iv)
if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable to the sellers and
underwriters, if any, than those set forth in Section 7 hereof (or such other
provisions and procedures reasonably acceptable to Holders of a majority in
aggregate principal amount of Registrable Notes covered by such Registration
Statement and the managing underwriter or underwriters or agents, if any). The
above shall be done at each closing under such underwriting agreement, or as and
to the extent required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, make available for
inspection by any Initial Purchaser, any selling Holder of such Registrable
Notes being sold (with respect to a Registration Statement filed pursuant to
Section 3 hereof), or each such Participating Broker-Dealer, as the case may be,
any underwriter participating in any such disposition of Registrable Notes, if
any, and any attorney, accountant or other agent retained by any such selling
Holder or each such Participating Broker-Dealer (with respect to any such
Registration Statement), as the case may be, or underwriter (any such Initial
Purchasers, Holders, Participating Broker-Dealers, underwriters, attorneys,
accountants or agents, collectively, the "Inspectors"), upon written request, at
the offices where normally kept, during reasonable business hours, all pertinent
financial and other records, pertinent corporate documents and instruments of
the Issuers and subsidiaries of the Issuers (collectively, the "Records"), as
shall be reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and employees of
the Issuers and any of their respective subsidiaries to supply all information
("Information") reasonably requested by any such Inspector in connection with
such due diligence responsibilities. Each Inspector shall agree in writing that
it will keep the Records and Information confidential and that it will not
disclose any of the Records or Information that any Issuer determines, in good
faith, to be confidential and notifies the Inspectors in writing are
confidential unless (i) the release of such Records or Information is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction,
(ii) disclosure of such Records or Information is necessary or advisable, in the
opinion of counsel for any Inspector, in connection with any action, claim, suit
or proceeding, directly or indirectly, involving or potentially involving such
Inspector and arising out of, based upon, relating to, or involving this
Agreement or the Purchase Agreement, or any transactions contemplated hereby or
thereby or arising hereunder or thereunder, or (iii) the information in such
Records or Information has been made generally available to the public other
than by an Inspector or an "affiliate" (as defined in Rule 405) thereof;
provided, however, that prior no-
-19-
▇▇▇▇ shall be provided as soon as practicable to any Issuer of the potential
disclosure of any information by such Inspector pursuant to clauses (i) or (ii)
of this sentence and such Inspector shall allow the Issuers to undertake
appropriate action to prevent disclosure of such records or Information at the
Issuer's expense.
(p) Provide an indenture trustee for the Registrable
Notes or the Exchange Notes, as the case may be, and cause the Indenture or the
trust indenture provided for in Section 2(a) hereof, as the case may be, to be
qualified under the TIA not later than the effective date of the first
Registration Statement relating to the Registrable Notes; and in connection
therewith, cooperate with the trustee under any such indenture and the Holders
of the Registrable Notes, to effect such changes (if any) to such indenture as
may be required for such indenture to be so qualified in accordance with the
terms of the TIA; and execute, and use its reasonable 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 Registered
Exchange Offer and Shelf Registration and make generally available or otherwise
provide to its securityholders with regard to any applicable Registration
Statement, a consolidated earnings statement 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
fiscal quarter (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Notes are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company, after
the effective date of a Registration Statement, which statements shall cover
said 12-month periods.
(r) Upon consummation of the Exchange Offer or a Private
Exchange, if so requested by the Trustee, obtain an opinion of counsel to the
Issuers, in a form customary for underwritten transactions, addressed to the
Trustee for the benefit of all Holders of Registrable Notes participating in the
Exchange Offer or the Private Exchange, as the case may be, that the Exchange
Notes or Private Exchange Notes, as the case may be, the related guarantees and
the related indenture constitute legal, valid and binding obligations of the
Issuers, enforceable against the Issuers in accordance with their respective
terms, subject to customary exceptions and qualifications. If the Exchange Offer
or a Private Exchange is to be consummated, upon delivery of the Registrable
Notes by Holders to the Company (or to such other Person as directed by the
Company), in exchange for the Exchange Notes or the Private Exchange Notes, as
the case may be, the Issuers shall ▇▇▇▇, or cause to be marked, on such
Registrable Notes that such Registrable Notes are being cancelled in exchange
for the Ex-
-20-
change Notes or the Private Exchange Notes, as the case may be; in no event
shall such Registrable Notes be marked as paid or otherwise satisfied.
(s) Cooperate with each seller of Registrable Notes
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Notes and their respective
counsel in connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
(t) Use its reasonable best efforts to take all other
steps necessary to effect the registration of the Exchange Notes and/or
Registrable Notes covered by a Registration Statement contemplated hereby.
The Issuers may require each seller of Registrable Notes as to
which any registration is being effected to furnish to the Issuers such
information regarding such seller and the distribution of such Registrable Notes
as the Issuers may, from time to time, reasonably request. The Issuers may
exclude from such registration the Registrable Notes of any seller so long as
such seller fails to furnish such information within a reasonable time after
receiving such request. Each seller as to which any Shelf Registration is being
effected agrees to furnish promptly to the Issuers all information required to
be disclosed in order to make the information previously furnished to the
Issuers by such seller not materially misleading.
If any such Registration Statement refers to any Holder by
name or otherwise as the holder of any securities of the Company, then such
Holder shall have the right to require (i) the insertion therein of language, in
form and substance reasonably satisfactory to such Holder, to the effect that
the holding by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the securities
covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Company, or (ii) in
the event that such reference to such Holder by name or otherwise is not
required by the Securities Act or any similar federal statute then in force, the
deletion of the reference to such Holder in any amendment or supplement to the
Registration Statement filed or prepared subsequent to the time that such
reference ceases to be required.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by its acquisition of such Registrable Notes or Exchange
Notes to be sold by such Participating Broker-Dealer, as the case may be, that,
upon actual receipt of any notice from the Company (i) 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)
hereof or (ii) of the commencement of a Blackout Period, such Holder will
forthwith discontinue disposition of such Registrable Notes covered by such
Registration Statement (other than any Exchange Offer Registration Statement in
the case of a Blackout Period) or Prospectus or Exchange Notes to be sold by
such Holder or Participating Broker-Dealer, as the case may be, until (x) in the
case of the immediately preceding clause(i), such Holder's or Participating
Broker-Dealer's receipt of the copies of the supplemented or
-21-
amended Prospectus contemplated by Section 5(k) hereof, or until it is advised
in writing (the "Advice") by the Issuers that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto or (y) in the case of the immediately preceding clause (ii)
the earlier of (A) 61 days after the commencement of such Blackout Period and
(b) receipt of notice from the Company that such Blackout Period has ended. In
the event that the Issuers shall give any such notice, each of the Applicable
Period and the Effectiveness 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 the requirements of the immediately preceding clause
(x) or (y), as the case may be, shall have been met..
6. Registration Expenses.
All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers (other than any underwriting
discounts or commissions in the event of an underwritten offering, and the fees
of any counsel retained by or on behalf of the underwriters, and transfer taxes,
if any, related to the sale or disposition of such Holder's Notes pursuant to
any Shelf Registration Statement, which shall be for the expense of the Holders)
shall be borne by the Issuers, whether or not the Exchange Offer Registration
Statement or any Shelf Registration Statement is filed or becomes effective or
the Exchange Offer is consummated, including, without limitation, (i) all
registration and filing fees (including, without limitation, (A) fees with
respect to filings required to be made with the NASD in connection with an
underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Registrable Notes are located, in the
case of the Exchange Notes, or (y) as provided in Section 5(h) hereof, in the
case of Registrable Notes or Exchange Notes to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii) printing expenses, including,
without limitation, expenses of printing certificates for Registrable Notes or
Exchange Notes in a form eligible for deposit with The Depository Trust Company
and of printing prospectuses if the printing of prospectuses is reasonably
requested by the managing underwriter or underwriters, if any, by the Holders of
a majority in aggregate principal amount of the Registrable Notes included in
any Registration Statement or in respect of Registrable Notes or Exchange Notes
to be sold by any Participating Broker-Dealer during the Applicable Period, as
the case may be, (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Issuers and, in the case of a Shelf
Registration, reasonable fees and disbursements of one special counsel for all
of the sellers of Registrable Notes (exclusive of any counsel retained pursuant
to Section 7 hereof), (v) fees and disbursements of all independent certified
public accountants referred to in Section 5(n)(iii) hereof (including, without
limitation, the expenses of any "cold comfort" letters required by or incident
to such performance), (vi) Securities Act liability insurance, if the Issu-
-22-
ers desire such insurance, (vii) fees and expenses of all other Persons retained
by the Issuers, (viii) internal expenses of the Issuers (including, without
limitation, all salaries and expenses of officers and employees of the Issuers
performing legal or accounting duties), (ix) the expense of any annual audit,
(x) any fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange, and the obtaining of a
rating of the securities, in each case, if applicable, and (xi) the expenses
relating to printing, word processing and distributing all Registration
Statements, underwriting agreements, indentures and any other documents
necessary in order to comply with this Agreement.
7. Indemnification and Contribution. (a) Each of the
Issuers agree, jointly and severally, to indemnify and hold harmless each Holder
of Registrable Notes and its employees, agents, representatives or affiliates,
each Participating Broker-Dealer selling Exchange Notes during the Applicable
Period and its employees, agents, representatives or affiliates, and each
Person, if any, who controls such Person or its affiliates within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act (each, a "Participant")
against any losses, claims, damages or liabilities to which any Participant may
become subject under the Act, the Exchange Act or otherwise, insofar as any such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon:
(i) any untrue statement or alleged untrue statement of
any material fact contained in any Registration Statement (or any
amendment thereto) or Prospectus (as amended or supplemented if any of
the Issuers shall have furnished any amendments or supplements thereto)
or any preliminary prospectus; or
(ii) the omission or alleged omission to state, in any
Registration Statement (or any amendment thereto) or Prospectus (as
amended or supplemented if any of the Issuers shall have furnished any
amendments or supplements thereto) or any preliminary prospectus or any
Application or any other document or any amendment or supplement
thereto, a material fact required to be stated therein or necessary to
make the statements therein not misleading;
and will reimburse, as incurred, the Participant for any reasonable legal or
other expenses incurred by the Participant in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, (i) the
Issuers will not be liable in any such case to the extent that any such loss,
claim, damage, or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in any
Registration Statement (or any amendment thereto) or Prospectus (as amended or
supplemented if any of the Issuers shall have furnished any amendments or
supplements thereto) or any preliminary prospectus or Application or any
amendment or supplement thereto in reliance upon and in conformity with
information relating to any Participant furnished to the Issuers by such
Participant specifically for use therein; and (ii) the Issuers shall not be
liable to any Participant under the indemnity
-23-
agreement in this subsection (a) with respect to preliminary prospectus to the
extent that any such loss, claim, damage or liability of such Participant
results from the fact that such Participant sold Notes to a Person as to whom it
shall be established that there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus (or the Prospectus
as then amended or supplemented if the Issuers shall have furnished such
Participant with such amendment or supplement thereto on a timely basis), in any
case where such delivery is required by applicable law and the loss, claim,
damage or liability of such Participant results from an untrue statement or
omission of a material fact contained in the preliminary prospectus which was
corrected in the Prospectus (or in the Prospectus as then amended or
supplemented if the Issuers shall have furnished such Participant with such
amendment or supplement thereto on a timely basis). The indemnity provided for
in this Section 7 will be in addition to any liability that the Issuers may
otherwise have to the indemnified parties. The Issuers shall not be liable under
this Section 7 for any settlement of any claim or action effected without its
prior written consent, which shall not be unreasonably withheld.
(b) Each Participant, severally and not jointly, agrees
to indemnify and hold harmless the Issuers, their directors, their officers,
employees, agents, representatives or affiliates and each Person, if any, who
controls the Issuers within the meaning of Section 15 of the Act or Section 20
of the Exchange Act against any losses, claims, damages or liabilities to which
the Issuers or any such director, officer or controlling person may become
subject under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any Application, Registration Statement or
Prospectus, any amendment or supplement thereto, or any preliminary prospectus,
or (ii) the omission or the alleged omission to state therein a material fact
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Participant, furnished to
the Issuers by the Participant, specifically for use therein; and subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses incurred by the Issuers or any such
director, officer or controlling person in connection with investigating or
defending against or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action in respect thereof. The indemnity
provided for in this Section 7 will be in addition to any liability that the
Participants may otherwise have to the indemnified parties. The Participants
shall not be liable under this Section 7 for any settlement of any claim or
action effected without their consent, which shall not be unreasonably withheld.
The Issuers shall not, without the prior written consent of such Participant,
effect any settlement or compromise of any pending or threatened proceeding in
respect of which any Participant is or could have been a party, or indemnity
could have been sought hereunder by any Participant, unless such settlement (A)
includes an unconditional written release of the Participants, in form and
substance reasonably satisfactory to the Participants, from all liability on
claims that are the subject matter of such proceeding and (B)
-24-
does not include any statement as to an admission of fault, culpability or
failure to act by or on behalf of any Participant.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action for which such
indemnified party is entitled to indemnification under this Section 7, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party of the
commencement thereof in writing; but the omission to so notify the indemnifying
party (i) will not relieve it from any liability under paragraph (a) or (b)
above unless and to the extent such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraphs (a) and
(b) above. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 7 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by Participants who sold a majority in
interest of the Registrable Notes and Exchange Notes sold by all such
Participants in the case of paragraph (a) of this Section 7 or the Issuers in
the case of paragraph (b) of this Section 7, representing the indemnified
parties under such paragraph (a) or paragraph (b), as the case may be, who are
parties to such action or
-25-
actions) or (ii) the indemnifying party has authorized in writing the employment
of counsel for the indemnified party at the expense of the indemnifying party.
All fees and expenses reimbursed pursuant to this paragraph (c) shall be
reimbursed as they are incurred following receipt of reasonable supporting
records or documentation. After such notice from the indemnifying party to such
indemnified party, the indemnifying party will not be liable for the costs and
expenses of any settlement of such action effected by such indemnified party
without the prior written consent of the indemnifying party (which consent shall
not be unreasonably withheld), unless such indemnified party waived in writing
its rights under this Section 7, in which case the indemnified party may effect
such a settlement without such consent.
(d) In circumstances in which the indemnity agreement
provided for in the preceding paragraphs of this Section 7 is unavailable to, or
insufficient to hold harmless, an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the 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 party or parties on the one hand and the indemnified party 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). The relative benefits received by the Issuers on
the one hand and such Participant on the other shall be deemed to be in the same
proportion as the total proceeds from the offering (before deducting expenses)
of the Notes on the Issue Date received by the Issuers bear to the total net
gain (if any) excluding expenses received by such Participant in connection with
the sale of the Notes. 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 the
Participants on the other, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission or
alleged statement or omission, and any other equitable considerations
appropriate in the circumstances. The parties agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the first sentence of this
paragraph (d). Notwithstanding any other provision of this paragraph (d), no
Participant shall be obligated to make contributions hereunder that in the
aggregate exceed the total net gain (if any) received by such Participant in
connection with the sale of the Notes, less the aggregate amount of any damages
that such Participant has otherwise been required to pay by reason of the untrue
or alleged untrue statements or the omissions or alleged omissions to state a
material fact, and no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
-26-
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this paragraph (d), each person, if any, who controls a Participant
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Participants, and each
director of any Issuer, each officer, employee, agent, representative or
affiliate of any Issuer and each person, if any, who controls any Issuer within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall
have the same rights to contribution as the Issuers.
8. Rules 144 and 144A.
For so long as any Registrable Notes remain outstanding, each
of the Issuers covenants and agrees that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner in accordance with
the requirements of the Securities Act and the Exchange Act and, if at any time
such Issuer is not required to file such reports, such Issuer will, upon the
request of any Holder or beneficial owner of Registrable Notes, make available
such information necessary to permit sales pursuant to Rule 144A. Each of the
Issuers further covenants and agrees, for so long as any Registrable Notes
remain outstanding that it will take such further action as any Holder of
Registrable Notes may reasonably request, all to the extent required from time
to time to enable such holder to sell Registrable Notes without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144(k) under the Securities Act and Rule 144A.
9. Underwritten Registrations.
If any of the Registrable Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Holders of a majority in aggregate principal amount of such
Registrable Notes included in such offering and shall be reasonably acceptable
to the Issuers.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Issuers have not, as
of the date hereof, and the Issuers shall not, after the date of this Agreement,
enter into any agreement with respect to any of their securities that is
inconsistent with the rights granted to the Holders
-27-
of Registrable Notes in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Issuers' other issued and outstanding securities under any such agreements.
The Issuers will not enter into any agreement with respect to any of their
securities which will grant to any Person piggy-back registration rights with
respect to any Registration Statement.
(b) Adjustments Affecting Registrable Notes. Except in
compliance with Section 10(c), the Issuers shall not knowingly, directly or
indirectly, take any action with respect to the Registrable Notes as a class
that would adversely affect the ability of the Holders of Registrable Notes to
include such Registrable Notes in a registration undertaken pursuant to this
Agreement.
(c) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, otherwise than with
the prior written consent of (I) the Company, and (II)(A) the Holders of not
less than a majority in aggregate principal amount of the then outstanding
Registrable Notes 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 Notes held by all
Participating Broker-Dealers; provided, however, that Section 7 and this Section
10(c) 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 Notes or
Exchange Notes, 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 Notes whose securities are being sold pursuant to a
Registration Statement may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being sold pursuant to such
Registration Statement.
(d) 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 facsimile:
(i) if to a Holder of the Registrable Notes or any
Participating Broker-Dealer, at the most current address of such Holder
or Participating Broker-Dealer, as the case may be, set forth on the
records of the registrar under the Indenture, with a copy in like
manner to the Initial Purchasers as follows:
-28-
Deutsche Banc Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Finance
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
(ii) if to the Initial Purchasers, at the address
specified in Section 10(d)(i);
(iii) if to the Issuers, at the address as follows:
c/o ERICO International Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
▇▇▇▇▇ Day
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; one Business
Day after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties hereto, the Holders and
-29-
the Participating Broker-Dealers; provided, however, that nothing herein shall
be deemed to permit any assignment, transfer or other disposition of Registrable
Notes in violation of the terms of the Purchase Agreement or the Indenture.
(f) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD REQUIRE THE APPLICATION OF
ANY OTHER LAW.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Issuers or Their Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by the Issuers
or their affiliates (as such term is defined in Rule 405 under the Securities
Act) shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
(k) Third-Party Beneficiaries. Holders of Registrable
Notes and Participating Broker-Dealers are intended third-party beneficiaries of
this Agreement, and this Agreement may be enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a final and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter con-
-30-
tained herein and therein and any and all prior oral or written agreements,
representations, or warranties, contracts, understandings, correspondence,
conversations and memoranda between the Holders on the one hand and the Issuers
on the other, or between or among any agents, representatives, parents,
subsidiaries, affiliates, predecessors in interest or successors in interest
with respect to the subject matter hereof and thereof are merged herein and
replaced hereby.
S-1
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
ERICO INTERNATIONAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: President
ERICO PRODUCTS, INC.,
as Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: General Counsel and Secretary
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
DEUTSCHE BANK SECURITIES INC.
On behalf of the several Initial Purchasers
listed on Schedule 1 of the
Purchase Agreement.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director