Exhibit 4.3
DISCOVERY ZONE, INC.
$85,000,000 13 1/2% SENIOR SECURED NOTES DUE 2002
WARRANTS TO PURCHASE 9.4724 SHARES OF COMMON STOCK
REGISTRATION RIGHTS AGREEMENT
July 22, 1997
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
DISCOVERY ZONE, INC., a Delaware corporation (the "Company" or the
"Issuer") is issuing and selling to ▇▇▇▇▇▇▇▇▇ & Company, Inc. (the "Initial
Purchaser"), upon the terms set forth in the Purchase Agreement, dated July 15,
1997 between the Company and the Initial Purchaser (the "Purchase Agreement"),
85,000 units (each, a "Unit" and the "Units"), each Unit consisting of one
$1,000 principal amount of the Company's 13 1/2% Senior Secured Notes due 2002
(each, a "Note," collectively, the "Notes") and one warrant (each, a "Warrant,"
and collectively, the "Warrants") to purchase 9.4724 shares of common stock, par
value $0.01 per share, of the Company (the "Common Stock"). As an inducement to
the Initial Purchaser to enter in to the Purchase Agreement, the Company agrees
with the Initial Purchaser, for the benefit of the Holders (as defined below) of
the Securities (as defined below) (including, without limitation, the Initial
Purchaser), as follows:
1. DEFINITIONS
Capitalized terms that are used herein without definition and are defined
in the Purchase Agreement shall have the respective meanings ascribed to them in
the Purchase Agreement. As used in this Agreement, the following terms shall
have the following meanings:
ADDITIONAL INTEREST: See Section 4(a).
ADVICE: See last paragraph of Section 6.
AGREEMENT: This Registration Rights Agreement dated as of the Closing
Date, among the Company, the existing Subsidiary Guarantors and the Initial
Purchaser.
APPLICABLE PERIOD: See Section 2(e).
BUSINESS DAY: A day that is not a Saturday, a Sunday or a day on which
banking institutions in the city of New York are authorized or required by law
or executive order to be closed.
CLOSING DATE: July __, 1997.
COLLATERAL AGREEMENTS: The Pledge Agreement, Escrow Agreement, Security
Agreement, Trademark Assignment and Subsidiary Security Agreements.
COMMON STOCK: See the first introductory paragraph to this Agreement.
COMPANY: See the first introductory paragraph to this Agreement.
DAY: Unless otherwise expressly provided, a calendar day.
EFFECTIVENESS DATE: The 180th day after the Closing Date.
EFFECTIVENESS PERIOD: See Section 3(a)
ESCROW AGREEMENT: The Escrow Agreement referred to in the Indenture.
EVENT DATE: See Section 4(b)
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
EXCHANGE NOTE: 13 1/2% Senior Secured Notes due 2002, Series B, of the
Issuer, including the guarantees endorsed thereon, identical in all material
respects to the Notes, except for references to series and restrictive legends.
EXCHANGE OFFER: See Section 2(a).
EXCHANGE REGISTRATION STATEMENT: See Section 2(a).
EXERCISE DATE: The date on which the Warrants are first exercisable.
FILING DATE: The 120th day after the Closing Date.
HOLDER: Any registered holder of Registrable Notes.
INDEMNIFIED PARTY: See Section 8(c).
INDEMNIFYING PARTY: See Section 8(c).
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INDENTURE: The Indenture, dated as of the Closing Date, among the Company,
the existing Subsidiary Guarantors and State Street Bank and Trust Company, as
trustee, pursuant to which the Notes are being issued, as amended or
supplemented from time to time in accordance with the terms hereof.
INITIAL PURCHASER: See the first introductory paragraph to this Agreement.
INITIAL SHELF REGISTRATION: See Section 3(a).
INSPECTORS: See Section 6(o).
ISSUER: See the first introductory paragraph to this Agreement.
NASD: National Association of Securities Dealers, Inc.
NOTES: See the first introductory paragraph to this Agreement.
NOTES PROSPECTUS: The prospectus included in any Notes 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 promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Notes covered by such Notes Registration Statement,
and all other amendments and supplements to such prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such prospectus.
NOTES REGISTRATION STATEMENT: Any registration statement of the Issuer
filed with the SEC under the Securities Act, (including, but not limited to, the
Exchange Registration Statement, the Shelf Registration and any subsequent Shelf
Registration) that covers any of the Registrable Notes pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
PARTICIPATING BROKER-DEALER: See Section 2(e).
PERSON: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm, government or agency or political subdivision
thereof, or other legal entity.
PIGGY-BACK REGISTRATION: See Section 11(b).
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PLEDGE AGREEMENT: The Pledge Agreement referred to in the Indenture.
PRIVATE EXCHANGE: See Section 2(f).
PRIVATE EXCHANGE NOTES: See Section 2(f).
PROSPECTUS: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the 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 first introductory paragraph to this
Agreement.
RECORDS: See Section 6(o).
REGISTRABLE NOTES: (i) Notes, (ii) Private Exchange Notes and (iii) any
Exchange Notes received in the Exchange Offer, in each case, that may not be
sold without restriction under federal or state securities laws.
REGISTRABLE WARRANT SHARES: Any of (i) the Warrant Shares (whether or not
the related Warrants have been exercised) and (ii) any other securities issued
or issuable with respect to any Warrant Shares by way of stock dividends or
stock splits or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise. As to any
particular Registrable Warrant Shares, such securities shall cease to be
Registrable Warrant Shares when (i) a Warrants Registration Statement with
respect to the offering of such securities by the Holder thereof shall have been
declared effective under the Securities Act and such securities shall have been
disposed of by such Holder pursuant to such Warrants Registration Statement,
(ii) such securities are eligible for sale to the public pursuant to Rule 144(k)
(or any similar provision then in force, but not Rule 144A) or are all otherwise
eligible for sale under Rule 144 by such Holder in the current calendar quarter,
or (iii) such securities shall have been otherwise transferred by such Holder
and new certificates for such securities not bearing a legend restricting
further transfer shall have been delivered by the Company or its transfer agent
and subsequent disposition of such securities shall not require registration or
qualification under the Securities Act or any similar state law then in force.
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REGISTRATION STATEMENT: Any Notes Registration Statement or Warrant Shares
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 or such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
RULE 144A: Rule 144A promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
RULE 415: Rule 415 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
SECURITIES: The Notes, the Private Exchange Notes, the Exchange Notes, the
Warrants and the Warrant Shares.
SECURITY AGREEMENT: The Security Agreement referred to in the Indenture.
SECURITIES ACT: The Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
SELLING HOLDER: A Holder who is selling Registrable Warrant Shares in
accordance with Section 11 hereof.
SHELF NOTICE: See Section 2(j).
SHELF REGISTRATION: See Section 3(b).
SUBSEQUENT SHELF REGISTRATION: See Section 3(b).
SUBSIDIARY GUARANTOR: Each subsidiary of the Issuer that guarantees the
obligations of the Issuer under the Notes and Indenture.
SUBSIDIARY SECURITY AGREEMENTS: The Subsidiary Security Agreements
referred to in the Indenture.
TIA: The Trust Indenture Act of 1939, as amended.
TRADEMARK ASSIGNMENT: The Trademark Assignment referred to in the
Indenture.
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TRUSTEE: The trustee under the Indenture and, if existent, the trustee
under any indenture governing the Exchange Notes and Private Exchange Notes (if
any).
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in
which securities of the Issuer are sold to an underwriter for reoffering to the
public.
UNITS: See the first introductory paragraph to this Agreement.
WARRANT AGREEMENT: The Warrant Agreement referred to in the Indenture.
WARRANT SHARES REGISTRATION EXPENSES: All expenses incident to the
Company's performance of or compliance with Section 11 of this Agreement,
including, without limitation, all SEC and stock exchange or NASD registration
and filing fees and expenses, fees and expenses of compliance with securities or
blue sky laws (including, without limitation, reasonable fees and disbursements
of counsel for any underwriters in connection with blue sky qualifications of
the Registrable Warrants), preparing, printing, filing, duplicating and
distributing a Warrants Registration Statement and the related Prospectus, the
cost of printing stock certificates, the cost and charges of any transfer agent,
rating agency fees, printing expenses, messenger, telephone and delivery
expenses, fees and disbursements of any counsel for the Company and all
independent certified public accountants, the fees and disbursements of
underwriters customarily paid by issuers or sellers of securities (but not
including any underwriting discounts or commissions or transfer taxes, if any,
attributable to the sale of Registrable Warrant Shares by Selling Holders), fees
and expenses of one counsel for the Selling Holders and other reasonable
out-of-pocket expenses of the Selling Holders.
WARRANTS: See the first introductory paragraph to this Agreement.
WARRANTS PROSPECTUS: The prospectus included in any Warrant Shares
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 promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Warrants covered by such Warrant
Shares Registration Statement, and all other amendments and supplements to such
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such prospectus.
WARRANT SHARES: The shares of Common Stock issuable upon exercise of the
Warrants.
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WARRANT SHARES REGISTRATION FILING DATE: A date on or before the date
occurring 90 days after the effectiveness date of a registration statement filed
with the SEC in connection with an initial public offering of the Common Stock,
provided, however, that, upon the written request of the managing underwriter of
such initial public offering such date may be extended to the date 180 days
following the effectiveness date of such initial public offering.
WARRANT SHARES REGISTRATION STATEMENT: See Section 11(a).
2. EXCHANGE OFFER
(a) The Issuer shall (and shall cause any existing Subsidiary
Guarantor to) (i) prepare and file with the SEC promptly after the date hereof,
but in no event later than the Filing Date, a registration statement (the
"Exchange Registration Statement") on an appropriate form under the Securities
Act with respect to an offer (the "Exchange Offer") to the Holders of
Registrable Notes to issue and deliver to such Holders, in exchange for the
Notes, a like aggregate principal amount of Exchange Notes, (ii) use their best
efforts to cause the Exchange Registration Statement to become effective as
promptly as practicable after the filing thereof, but in no event later than the
Effectiveness Date, (iii) keep the Exchange Registration Statement effective
until the consummation of the Exchange Offer in accordance with its terms and
(iv) unless the Exchange Offer would not be permitted by a policy of the SEC,
commence the Exchange Offer and use their best efforts to issue on or prior to
30 Business Days after the date on which the Exchange Registration Statement is
declared effective, Exchange Notes in exchange for all Notes tendered prior
thereto in the Exchange Offer. The Exchange Offer shall not be subject to any
conditions, other than that the Exchange Offer does not violate applicable law
or any applicable interpretation of the staff of the SEC.
(b) The Exchange Notes shall be issued under, and entitled to the
benefits of, (i) the Indenture or a trust indenture that is identical to the
Indenture (other than such changes as are necessary to comply with any
requirements of the SEC to effect or maintain the qualifications thereof under
the TIA), (ii) the Security Agreement or a security agreement that is identical
to the Security Agreement and (iii) the Escrow Agreement or an agreement that is
identical to the Escrow Agreement.
(c) Interest on each Exchange Note and Private Exchange Note will
accrue from the last interest payment due date on which interest was paid on the
Notes surrendered in exchange therefor or, if no interest have been paid on the
Notes, from the date of original issue of the Notes. Each Exchange Note and
Private Exchange Note shall bear interest at the rate set forth thereon;
provided, that interest with respect to the period prior
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to the issuance thereof shall accrue at the rate or rates borne by the Notes
from time to time during such period.
(d) The Issuer may require each Holder who participates in the
Exchange Offer to represent (i) that any Exchange Notes received by it will be
acquired in the ordinary course of its business, (ii) that at the time of the
commencement of the Exchange Offer such Holder has not entered into any
arrangement or understanding with any Person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Notes in violation of
the provisions of the Securities Act, (iii) that if such Holder is an affiliate
of the Issuer within the meaning of the Securities Act, that it will comply with
the registration and prospectus delivery requirements of the Securities Act to
the extent applicable to it, (iv) if such Holder is not a broker-dealer, that it
is not engaged in, and does not intend to engage in, the distribution of the
Notes and (v) if such Holder is a Participating Broker-Dealer, that it will
deliver a Prospectus in connection with any resale of the Exchange Notes.
(e) The Issuer shall include within the Notes Prospectus contained in
the Exchange Registration Statement a Section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchaser, 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 for its own account
in exchange for Notes that were acquired by it as a result of market-making or
other trading activity (a "Participating Broker-Dealer"), whether such positions
or policies have been publicly disseminated by the staff of the SEC or such
positions or policies, in the judgment of the Initial Purchaser, represent the
prevailing views of the staff of the SEC. Such "Plan of Distribution" Section
shall also allow, to the extent permitted by applicable policies and regulations
of the SEC, the use of the Notes Prospectus by all Persons subject to the
prospectus delivery requirements of the Securities Act, including, to the extent
so permitted, all Participating Broker Dealers, and include a statement
describing the manner in which Participating Broker-Dealers may resell the
Exchange Notes. The Issuer shall use its best efforts to keep the Exchange
Registration Statement effective and to amend and supplement the Notes
Prospectus contained therein, in order to permit such Notes Prospectus to be
lawfully delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such Persons must
comply with such requirements in order to resell the Exchange Notes (the
"Applicable Period").
(f) If, upon consummation of the Exchange Offer, the Initial
Purchaser holds any Notes acquired by it and having the status of an unsold
allotment in the initial distribution, the
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Company (upon the written request from such Initial Purchaser) shall,
simultaneously with the delivery of the Exchange Notes in the Exchange Offer,
issue and deliver to the Initial Purchaser, in exchange (the "Private Exchange")
for the Notes held by the Initial Purchaser, a like principal amount of debt
securities of the Company, guaranteed by any then existing Subsidiary Guarantors
and secured by the same collateral as the Exchange Notes, that are identical in
all material respects to the Exchange Notes except for the existence of
restrictions on transfer thereof under the Securities Act and securities laws of
the several states of the U.S. (the "Private Exchange Notes") (and which are
issued pursuant to the same indenture as the Exchange Notes). The Private
Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Issuer shall:
(1) mail to each Holder a copy of the Notes Prospectus forming
part of the Exchange Registration Statement, together with an appropriate
letter of transmittal (as an exhibit thereto) and related documents;
(2) utilize the services of a depository for the Exchange Offer
with an address in the Borough of Manhattan, the City of New York, which
may be the Trustee or an affiliate thereof;
(3) permit Holders to withdraw tendered Registrable Notes at any
time prior to the close of business, New York time, on the last Business
Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable laws.
(h) As soon as practicable after the close of the Exchange Offer or
the Private Exchange, as the case may be, the Issuer shall:
(1) accept for exchange all Notes validly tendered pursuant to
the Exchange Offer or the Private Exchange, as the case may be, and not
validly withdrawn;
(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 tendering such Notes, Exchange Notes or Private Exchange Notes,
as the case may be, equal in principal amount to the Notes, Exchange Notes
or Private Exchange Notes, as the case may be, of such Holder so accepted
for exchange.
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(i) The Exchange Notes and the Private Exchange Notes may be issued
under (i) the Indenture or (ii) an indenture identical in all material respects
to the Indenture, which in either event will provide that the Exchange Notes
will not be subject to the transfer restrictions set forth in the Indenture and
that the Exchange Notes, the Private Exchange Notes and the Notes, if any, will
be deemed one class of security (subject to the provisions of the Indenture) and
entitled to participate in all the security granted by the Company pursuant to
the Collateral Agreements and in any Subsidiary Guarantee as such terms are
defined in the Indenture) on an equal and ratable basis.
(j) If, (i) prior to the consummation of the Exchange Offer, either
the Issuer or the Holders of a majority in aggregate principal amount of the
outstanding Registrable Notes determines in its or their reasonable judgment
that (A) the Exchange Notes would not, upon receipt, be tradable by the Holders
thereof without restriction under the Securities Act, the Exchange Act or
applicable Blue Sky or state securities laws or (B) the interests of the Holders
under this Agreement, taken as a whole, would be materially adversely affected
by the consummation of the Exchange Offer, (ii) applicable interpretations of
the staff of the SEC would not permit the consummation of the Exchange Offer
prior to the Effectiveness Date, (iii) the Exchange Offer is not consummated
within 180 days of the Closing Date for any reason, (iv) any holder of Private
Exchange Notes so requests in writing to the Issuer within 120 days after the
consummation of the Exchange Offer or (v) in the case of any Holder not
permitted to participate in the Exchange Offer or any Holder that participates
in the Exchange Offer but 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
Issuer within the meaning of the Securities Act) and so notifies the Company
within six months of consummation of the Exchange Offer, then the Issuer (and
any then existing Subsidiary Guarantor) shall promptly deliver to the Holders
and the Trustee written notice thereof (the "Shelf Notice") and shall file an
Initial Shelf Registration pursuant to Section 3.
(k) No registration effected under this Section 2, and no failure to
effect a registration under this Section 2, shall relieve the Company of its
obligations to effect a registration upon the request of Holders of Registrable
Warrant Shares pursuant to Section 11 hereof.
3. SHELF REGISTRATION
If a Shelf Notice is delivered pursuant to Section 2(j), then this
Section 3 shall apply to all Registrable Notes. Otherwise, upon consummation of
the Exchange Offer in accordance with Section 2, the provisions of Section 3
shall apply solely with respect to (i) Notes held by any Holder thereof not
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permitted to participate in the Exchange Offer and (ii) Exchange Notes that are
not freely tradeable as contemplated by Section 2(j)(v) hereof, provided in each
case that the relevant Holder has duly notified the Issuer within six months of
the Exchange Offer as required by Section 2(j)(v).
(a) INITIAL SHELF REGISTRATION. The Issuer shall as promptly as
practicable file (and shall cause any then existing Subsidiary Guarantor to
file) with the SEC a Notes 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"). If the Issuer (and any then existing
Subsidiary Guarantor) has not yet filed an Exchange Registration Statement, the
Issuer shall file (and shall cause any then existing Subsidiary Guarantor to
file) with the SEC the Initial Shelf Registration on or prior to the Filing Date
and shall use its best efforts to cause such Initial Shelf Registration to be
declared effective under the Securities Act on or prior to the Effectiveness
Date. Otherwise, the Issuer shall use its best efforts to file (and shall cause
any then existing Subsidiary Guarantor to file) with the SEC the Initial Shelf
Registration within 20 days of the delivery of the Shelf Notice and shall use
its best efforts to cause such Shelf Registration to be declared effective under
the Securities Act as promptly as practicable thereafter. 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 Issuer and Subsidiary Guarantors shall not permit
any securities other than the Registrable Notes to be included in any Shelf
Registration. No Holder of Registerable Notes shall be entitled to include any
of its Registrable Notes in any Shelf Registration pursuant to this Agreement
unless such Holder furnishes to the Issuer and the Trustee in writing, within 30
days after receipt of a request therefor, such information as the Issuer and the
Trustee after conferring with counsel with regard to information relating to
Holders that would be required by the SEC to be included in such Shelf
Registration or Prospectus included therein, may reasonably request for
inclusion in any Shelf Registration or Prospectus included therein. The Issuer
shall use its best efforts to keep the Initial Shelf Registration continuously
effective under the Securities Act until the date which is 36 months from the
Closing Date (the "Effectiveness Period"), or such shorter period ending when
(i) 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 (ii) a Subsequent Shelf Registration covering all of the
Registrable Notes has been declared effective under the Securities Act.
(b) SUBSEQUENT SHELF REGISTRATIONS. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be effective for any
reason at any time during the Effectiveness Period (other than because of the
sale of all of the securities
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registered thereunder), the Issuer shall use its best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof, and in any
event shall within 5 Business Days of such cessation of effectiveness amend such
Shelf Registration in a manner to obtain the withdrawal of the order suspending
the effectiveness thereof, or file (and cause any then existing Subsidiary
Guarantor to file) an additional "shelf" Notes Registration Statement pursuant
to Rule 415 covering all of the Registrable Notes (a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, the Issuer shall
use its best efforts to cause the Subsequent Shelf Registration to be declared
effective 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 Registrations was
previously continuously effective. As used herein the term "Shelf Registration"
means the Initial Shelf Registration and any Subsequent Shelf Registrations
(c) SUPPLEMENTS AND AMENDMENTS. The Issuer shall promptly supplement
and amend any 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
covered by such Shelf Registration or by any underwriter of such Registrable
Notes.
(d) No registration effected under this Section 3, and no failure to
effect a registration under this Section 3, shall relieve the Company of its
obligations to effect a registration upon the request of Holders of Registrable
Warrant Shares pursuant to Section 11 hereof.
4. ADDITIONAL INTEREST
(a) The Issuer acknowledges and agrees that the Holders of
Registrable Notes will suffer damages if the Issuer fails to fulfill its
obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Issuer agrees to pay, as liquidated damages, cash 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 neither the Exchange Registration Statement nor the Initial
Shelf Registration has been filed on or prior to the Filing Date, then
commencing on the day after the Filing Date, Additional Interest shall
accrue on the Notes over and above any stated interest at a rate of 0.25%
per annum of the principal amount of such Notes for the first 90 days
commencing on the Filing Date, such Additional Interest rate
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increasing by an additional 0.25% per annum at the beginning of each
subsequent 90-day period;
(ii) if neither the Exchange Registration Statement nor the Initial
Shelf Registration is declared effective on or prior to the Effectiveness
Date, then commencing on the Effectiveness Date, Additional Interest shall
accrue on the Notes over and above any stated interest at a rate of 0.25%
per annum of the principal amount of such Notes for the first 90 days
immediately following the Filing Date, such Additional Interest rate
increasing by an additional 0.25% per annum at the beginning of each
subsequent 90-day period;
(iii) if (A) the Issuer (and any then existing Subsidiary Guarantor)
has not exchanged Exchange Notes for all Notes validly tendered in
accordance with the terms of the Exchange Offer on or prior to the 210th
day after the date hereof, (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 and is not declared effective
again within 5 Business Days, (C) pending the announcement of a material
corporate transaction, the Issuer issues a written notice pursuant to
Section 6(e)(v) or (vi) that a Shelf Registration Statement or Exchange
Registration Statement is unusable and the aggregate number of days in any
365-day period for which all such notices issued or required to be issued,
have been, or were required to be, in effect exceeds 120 days in the
aggregate or 30 days consecutively, in the case of a Shelf Registration
Statement, or 15 days in the aggregate in the case of an Exchange
Registration Statement, then Additional Interest shall accrue on the Notes
over and above any stated interest at a rate of 0.25% per annum of the
principal amount of such Notes for the first 90 days commencing on the (x)
210th day after the date hereof, in the case of (A) above, (y) the day such
Shelf Registration ceases to be effective without being declared effective
again within 5 Business Days in the case of (B) above, or (z) the day the
Exchange Registration Statement or Shelf Registration ceased to be usable
in case of clause (C) above, such Additional Interest rate increasing by an
additional 0.25% per annum at the beginning of each such subsequent 90-day
period;
provided, however, that the Additional Interest rate on the Notes may not exceed
at any one time in the aggregate 1.00% per annum; and provided further, that (1)
upon the filing of the Exchange Registration Statement or Initial Shelf
Registration (in the case of (i) above), (2) upon the effectiveness of the
Exchange Registration Statement or Initial Shelf Registration (in the case of
(ii) above), or (3) upon the exchange of Exchange Notes for all Notes tendered
(in the case of (iii)(A) above), or upon the effectiveness of a Shelf
Registration which had ceased to remain effective (in the case of (iii)(B)
above), Additional Interest on
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the Notes as a result of such clause (or the relevant subclause thereof), as the
case may be, shall cease to accrue.
(b) The Issuer 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 clause (a)(i), (a)(ii) or (a)(iii) of this
Section 4 will be payable semi-annually, on the dates and in the manner provided
in the Indenture and whether or not any cash interest would then be payable on
such date, commencing with the first such semi-annual 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 Notes, multiplied by a fraction, the numerator of which
is the number of days such Additional Interest rate was applicable during such
semi-annual 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.
5. HOLD-BACK AGREEMENTS
The Issuer agrees that it will not effect any public or private sale
or distribution (including a sale pursuant to Regulation D under the Securities
Act) of any securities the same as or similar to those covered by a Registration
Statement filed pursuant to Section 2 or 3 hereof, or any securities convertible
into or exchangeable or exercisable for such securities, during the 10 days
prior to, and during the 90-day period beginning on, (A) the effective date of
any Registration Statement filed pursuant to Sections 2 and 3 hereof unless the
Holders of a majority in the aggregate principal amount of the Registrable Notes
to be included in such Registration Statement consent or (B) the commencement of
an underwritten public distribution of Registrable Warrant Shares, if the
managing underwriter thereof so requests.
6. NOTES REGISTRATION PROCEDURES
In connection with the filing of any Notes Registration Statement
pursuant to Section 2 or 3 hereof, the Issuer shall effect such registrations to
permit the sale of such securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto and in
connection with any Notes Registration Statement filed by the Issuer hereunder,
the Issuer shall:
(a) Prepare and file with the SEC as soon as practicable after the
date hereof but in any event on or prior to the Filing Date, the Exchange
Registration Statement or if the Exchange Registration Statement is not filed
because of the circumstances contemplated by Section 2(j)(ii), a Shelf
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Registration as prescribed by Section 3, and use its best efforts to cause each
such Notes Registration Statement to become effective and remain effective as
provided herein; provided that, if (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Notes Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, before filing any Notes Registration
Statement or Notes Prospectus or any amendments or supplements thereto the
Issuer shall, if requested, furnish to and afford the Holders of the Registrable
Notes to be registered pursuant to such Shelf Registration Statement, or each
Participating Broker-Dealer and to 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 Issuer shall not file any such Notes
Registration Statement or Notes Prospectus or any amendments or supplements
thereto if the holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Notes Registration Statement, or any such
Participating Broker-Dealer, as the case may be, their counsel, or the managing
underwriters, if any, shall reasonably object.
(b) Provide an indenture trustee for the Registrable Notes, the
Exchange Notes or the Private Exchange Notes, as the case may be, and cause the
Indenture (or other indenture relating to the Registrable Notes) to be qualified
under the TIA not later than the effective date of the first Registration
Statement; and in connection therewith, 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 its 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.
(c) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration or Exchange Registration Statement, as the
case may be, as may be necessary to keep such Notes Registration Statement
continuously effective for the Effectiveness Period or the Applicable Period, as
the case may be; cause the related Notes Prospectus to be supplemented by any
Prospectus supplement required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) promulgated
under the Securities Act; 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 Notes Registration Statement as so amended or in such
Notes Prospectus as so supplemented and with respect to the subsequent resale of
any securities being sold by a Participating Broker-Dealer covered by
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any such Prospectus. The Issuer shall not, during the Applicable Period take
any action that would result in selling Holders of the Registrable Notes covered
by a Notes Registration Statement or Participating Broker-Dealers seeking to
sell Exchange Notes not being able to sell such Registrable Notes or such
Exchange Notes during that period.
(d) Furnish to such selling Holders and Participating Broker-Dealers
who so request in writing (i) upon the Company's receipt, a copy of the order of
the SEC declaring such Registration Statement and any post-effective amendment
thereto effective and (ii) such reasonable number of copies of such Registration
Statement and of each amendment and supplement thereto (in each case including
any documents incorporated therein by reference and all exhibits), (iii) such
reasonable number of copies of the Prospectus included in such Registration
Statement (including each preliminary Prospectus), and such reasonable number of
copies of the final Prospectus as filed by the Company pursuant to Rule 424(b)
under the Securities Act, in conformity with the requirements of the Securities
Act, and (iv) such other documents, (including any amendments required to be
filed pursuant to clause (c) of this Section), as any such Person may reasonably
request. The Company hereby consents to the use of the Prospectus 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 thereto.
(e) If (1) a Shelf Registration is filed pursuant to Section 3, or
(2) a Notes Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, notify in writing the selling Holders of Registrable Notes,
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 two
Business Days) (i) when a Notes Prospectus or any Notes Prospectus supplement or
post-effective amendment has been filed, and, with respect to a Notes
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 Notes
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 Notes Registration Statement or of any order
preventing or suspending the use of any Notes 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
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connection with sales of the Registrable Notes the representations and
warranties of the Issuer contained in any agreement (including any underwriting
agreement) contemplated by Section 6(n) hereof cease to be true and correct,
(iv) of the receipt by the Issuer of any notification with respect to the
suspension of the qualification or exemption from qualification of a Notes
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 of
any information becoming known that makes any statement made in such Notes
Registration Statement or related Notes 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 Notes Registration Statement, Notes Prospectus or documents so that, in the
case of the Notes Registration Statement and the Notes 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 light of the circumstances under which they were made, not misleading, and
(vi) of any reasonable determination by the Company that a post-effective
amendment to a Notes Registration Statement would be appropriate.
(f) Use its best efforts to prevent the issuance of any order
suspending the effectiveness of a Notes Registration Statement or of any order
preventing or suspending the use of a Notes 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 best efforts to
obtain the withdrawal of any such order at the earliest possible date.
(g) If (A) a Shelf Registration is filed pursuant to Section 3 or (B)
a Notes Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period or (C) requested by the managing underwriters, if any, or the
Holders of a majority in aggregate principal amount of the Registrable Notes
being sold in connection with an underwritten offering, (i) promptly incorporate
in a prospectus supplement or post-effective amendment such information or
revisions to information therein relating to such underwriters or selling
Holders as the managing underwriters, if any, or such Holders or their counsel
reasonably request to be included or made therein and (ii) make all required
filings of such prospectus supplement or such post-effective amendment as soon
as practicable after the Issuer has received notification of the matters to be
incorporated in such prospectus supplements or post-effective amendment.
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(h) Prior to any public offering of Registrable Notes or any delivery
of a Notes Prospectus contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, use its 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 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 or
Exchange Notes, 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 any managing underwriter or
underwriters, if any, reasonably request in writing; provided that where
Exchange Notes held by Participating Broker-Dealers or Registrable Notes are
offered other than through an underwritten offering, the Issuer agrees to cause
its counsel to perform Blue Sky investigations and file any registrations and
qualifications required to be filed pursuant to this Section 6(h); keep each
such registration or qualification (or exemption therefrom) effective during the
period such Notes Registration Statement is required to be kept effective and do
any and all other acts or things reasonable 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 that neither the Issuer nor any existing Subsidiary
Guarantor shall be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or (C) subject itself to taxation in excess of a nominal
dollar amount in any such jurisdiction where it is not then so subject.
(i) If (A) a Shelf Registration is filed pursuant to Section 3 or (B)
a Prospectus contained in an Exchange Registration Statement filed pursuant to
Section 2 is requested to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, 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 and registered in such names as
the managing underwriter or underwriters, if any, or Holders may reasonably
request.
(j) use its best efforts to cause the Registrable Notes covered by
any Notes Registration Statement to be registered with or approved by such
governmental agencies or authorities as may be necessary to enable the seller or
sellers
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thereof or the underwriter, 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 Issuer will
cooperate in all reasonable respects with the filing of such Notes Registration
Statement and the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3, or
(2) a Notes Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, upon the occurrence of any event contemplated by paragraph
6(e)(v) or 6(e)(vi) hereof, as promptly as practicable prepare and file with the
SEC, at the expense of the Issuer, a supplement or post-effective amendment to
the Notes Registration Statement or a supplement to the related Notes 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 or to the purchasers
of the Exchange Notes to whom such Notes Prospectus will be delivered by a
Participating Broker-Dealer, such Notes 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 light of the
circumstances under which they were made, not misleading.
(l) Use its best efforts to cause the Registrable Notes covered by a
Notes Registration Statement to be rated with the appropriate rating agencies,
if so requested by the Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Notes Registration Statement or the managing
underwriter or underwriters, if any.
(m) Prior to the initial issuance of the Exchange Notes, (i) provide
the Trustee with one or more certificates for the Registrable Notes in a form
eligible for deposit with The Depository Trust Company and (ii) provide a CUSIP
number for the Exchange Notes.
(n) If a Shelf Registration is filed pursuant to Section 3, enter
into such agreements (including an underwriting agreement in form, scope and
substance as is customary in underwritten offerings of debt securities similar
to the Notes, as may be appropriate in the circumstances) and take all such
other actions in connection therewith (including those reasonably requested by
the managing underwriters, if any, or the Holders of a majority in aggregate
principal amount of the Registrable Notes being sold) in order to expedite or
facilitate the registration or the disposition of such Registrable Notes, and in
such connection, whether or not an underwriting agreement is entered into and
whether or not the registration is an Underwritten registration, (i) make such
representations and warranties to the
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Holders and the underwriters, if any, 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, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings of debt securities similar to
the Notes, as may be appropriate in the circumstances, and confirm the same if
and when reasonably required; (ii) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to the managing underwriters, if any, and the Holders
of a majority in aggregate principal amount of the Registrable Notes being
sold), addressed to each selling Holder and each of the underwriters, if any,
covering the matters customarily covered in opinions of counsel to the Issuer
requested in underwritten offerings of debt securities similar to the Notes, as
may be appropriate in the circumstances; (iii) obtain "cold comfort" letters and
updates thereof (which letters and updates (in form, scope and substance) shall
be reasonably satisfactory to the managing underwriters) from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each of the underwriters and each selling Holder, such
letters to be in customary form and covering ▇▇▇▇▇▇ of the type customarily
covered in "cold comfort" letters in connection with underwritten offerings of
debt securities similar to the Notes, as may be appropriate in the
circumstances, and such other matters as reasonably requested by underwriters;
and (iv) deliver such documents and certificates as may be reasonably requested
by the Holders of a majority in principal amount of the Registrable Notes being
sold and the managing underwriters, if any, to evidence the continued validity
of the representations and warranties of the Company and its subsidiaries made
pursuant to clause (i) above and to evidence compliance with any conditions
contained in the underwriting agreement or other similar agreement entered into
by the Company.
(o) If (1) a Shelf Registration is filed pursuant to Section 3, or
(2) a Notes Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make available for inspection by any selling Holder of such
Registrable Notes being sold, 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, as the case
may be, or underwriter (collectively, the "Inspectors"), at the offices where
normally kept, during reasonable business hours, all financial and other records
and pertinent corporate
-20-
documents of the Issuer and its subsidiaries (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 Issuer and its subsidiaries to supply all information reasonably requested
by any such Inspector in connection with such Notes Registration Statement.
Such Records shall be kept confidential by each Inspector and shall not be
disclosed by the Inspector unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in such Notes
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 is public or has been made generally available to
the public other than as a result of a disclosure or failure to safeguard by
such Inspector or (iv) disclosure of such information is, in the opinion of
counsel for any Inspector, necessary or advisable in connection with any action,
claim, suit or proceeding, directly or indirectly, involving or potentially
involving such Inspector and arising out of, based upon, related to, or
involving this agreement, or any transaction contemplated hereby or arising
hereunder. Each selling Holder of such Registrable Notes 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
Issuer unless and until such is made generally available to the public. Each
selling Holder of such Registrable Notes 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 Issuer and, to the extent practicable, use its best efforts to
allow the Issuer, at its expense, to undertake appropriate action to prevent
disclosure of the Records deemed confidential at their expense.
(p) Comply with all applicable rules and regulations of the SEC and
make generally available to the security holders of the Company earnings
statements satisfying the provisions of section 11(a) of the Securities Act and
Rules 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 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 Notes
Registration Statement, which statements shall cover said 12-month periods.
(q) Upon consummation of an Exchange Offer or Private Exchange,
obtain an opinion of counsel to the Company (in form, scope and substance
reasonably satisfactory to the Purchaser),
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addressed to the Trustee for the benefit of all Holders participating in the
Exchange Offer or Private Exchange, as the case may be, to the effect that (i)
the Company and the existing Subsidiary Guarantors have duly authorized,
executed and delivered the Exchange Notes or the Private Exchange Notes, as the
case may be, and the Indenture, (ii) the Exchange Notes or the Private Exchange
Notes, as the case may be, and the Indenture constitute legal, valid and binding
obligations of the Company and the existing Subsidiary Guarantors, enforceable
against the Company and the existing Subsidiary Guarantors in accordance with
their respective terms, except as such enforcement may be subject to customary
exceptions and (iii) all obligations of the Company and the existing Subsidiary
Guarantors under the Exchange Notes or the Private Exchange Notes, as the case
may be, and the Indenture are secured by Liens on the assets securing the
obligations of the Company under the Notes, Indenture and Collateral Agreements.
(r) If the Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Notes by the Holders to the Issuers (or to such
other Person as directed by the Issuer) in exchange for the Exchange Notes of
the Private Exchange Notes, as the case may be, the Issuer shall mark, or caused
to be marked, on such Registrable Notes that such Registrable Notes are being
cancelled in exchange for the Exchange Notes or the Private Exchange Notes, as
the case may be; provided that 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
Notes 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 NASD.
(t) Use its best efforts to take all other steps reasonably necessary
to effect the registration of the Registrable Notes covered by a Notes
Registration Statement contemplated hereby.
The Issuer may require each seller of Registrable Notes or
Participating Broker-Dealer as to which any registration is being effected to
furnish to the Issuer such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Notes as the Issuer may,
from time to time, reasonably request. The Issuer may exclude from such
registration the Registrable Notes of any seller who fails to furnish such
information within a reasonable time (which time in no event shall exceed 60
days) after receiving such request.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or Exchange Notes to be sold by
such Participating Broker-Dealer, as the case may be, that, upon receipt of any
notice from the Issuer
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of the happening of any event of the kind described in Section 6(e)(ii),
6(e)(iv), 6(e)(v), or 6(e)(vi), such Holder will forthwith discontinue
disposition of such Registrable Notes covered by a Notes Registration Statement
and such Participating Broker-Dealer will forthwith discontinue disposition of
such Exchange Notes pursuant to any Notes Prospectus and, in each case,
forthwith discontinue dissemination of such Prospectus until such Holder's or
Participating Broker-Dealer's receipt of the copies of the supplemented or
amended Notes Prospectus contemplated by Section 6(k), or until it is advised in
writing (the "Advice") by the Issuer that the use of the applicable Prospectus
may be resumed, and has received copies of any amendments or supplements thereto
and, if so directed by the Issuer, such Holder or Participating Broker-Dealer,
as the case may be, will deliver to the Issuer all copies, other than permanent
file copies, then in such Holder's or Participating Broker-Dealer's possession,
of the Notes Prospectus covering such Registrable Notes current at the time of
the receipt of such notice. In the event the Issuer shall give any such notice,
the Applicable Period shall be extended by the number of days during such
periods from and including the date of the giving of such notice to and
including the date when each Participating Broker-Dealer shall have received (x)
the copies of the supplemented or amended Notes Prospectus contemplated by
Section 6(k) or (y) the Advice.
7. REGISTRATION EXPENSES
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuer (other than Warrant Shares
Registration Expenses which are covered by Section 11) shall be borne by the
Issuer, whether or not the Exchange Offer or a Shelf Registration is filed or
becomes effective, including, without limitation, (i) all registration and
filing fees, including, without limitation, (A) fees with respect to filings
required to be made with the NASD in connection with any underwritten offering
and (B) fees and expenses of compliance with state securities or Blue Sky laws
as provided in Section 6(h) hereof, (ii) printing expenses, including, without
limitation, expenses of printing Prospectuses if the printing of Prospectuses is
requested by the managing underwriter or underwriters, if any, or by the Holders
of a majority in aggregate principal amount of the Registrable Notes included in
any Notes Registration Statement or by any Participating Broker-Dealer during
the Applicable Period, as the case may be, (iii) messenger, telephone and
delivery expenses incurred in connection with the performance of its obligations
hereunder, (iv) fees and disbursements of counsel for the Issuer, (v) fees and
disbursements of all independent certified public accountants referred to in
Section 6(n)(iii) (including, without limitation, the expenses of any special
audit and "cold comfort" letters required by or incident to such performance),
(vi) rating agency fees, (vii) Securities Act liability insurance, if the Issuer
desires such insurance, (viii) fees and expenses of all other
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Persons retained by the Issuers, (ix) internal expenses of the Issuer
(including, without limitation, all salaries and expenses of officers and
employees of the Issuer performing legal or accounting duties), (x) the expense
of any annual audit, (xi) the fees and expenses incurred in connection with the
listing of the securities to be registered on any securities exchange and (ii)
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) The Company shall reimburse the Holders 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 Notes to be included in any Registration Statement. The Company
shall pay all documentary, stamp, transfers or other transactional taxes
attributable to the issuance or delivery of the Exchange Notes or Private
Exchange Notes in exchange for the Notes; provided that the Company shall not be
required to pay taxes payable in respect of any transfer involved in the
issuance or delivery of any Exchange Note or Private Exchange Note in a name
other than that of the Holder of the Note in respect of which such Exchange Note
or Private Exchange Note is being issued.
8. INDEMNIFICATION
(a) INDEMNIFICATION BY THE COMPANY. The Company shall (and shall
cause each Subsidiary Guarantor, jointly and severally, to) without limitation
as to time, indemnify and hold harmless each Holder of Registrable Notes,
Exchange Notes, Private Exchange Notes or Registrable Warrant Shares and each
Participating Broker-Dealer selling Exchange Notes during the Applicable Period,
each Person, if any, who controls each such Holder (within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act) and the
officers, directors and partners of each such Holder, Participating
Broker-Dealer and controlling person, to the fullest extent lawful, from and
against any and all losses, claims, damages, liabilities, costs (including,
without limitation, reasonable costs of preparation and reasonable attorneys'
fees as provided in this Section 8) and expenses (including, without limitation,
reasonable costs and expenses incurred in connection with investigating,
preparing, pursuing or defending against any of the foregoing)(collectively,
"Losses"), as incurred, directly or indirectly caused by, related to, based
upon, arising out of or in connection with any untrue or alleged untrue
statement of a material fact contained in any Registration Statement, Prospectus
or form of prospectus, or in any amendment or supplement thereto, or in any
preliminary prospectus, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except insofar as such
-24-
Losses are solely based upon information relating to such Holder or
Participating Broker-Dealer and furnished in writing to the Company (or reviewed
and approved in writing) by such Holder or Participating Broker-Dealer or its
counsel expressly for use therein; provided, however, that the Company will not
be liable to any Indemnified Party under this Section 8 to the extent Losses
were solely caused by an untrue statement or omission or alleged untrue
statement or omission that was contained or made in any preliminary prospectus
and corrected in the Prospectus or any amendment or supplement thereto if (i)
the Prospectus does not contain any other untrue statement or omission or
alleged untrue statement or omission of a material fact that was the subject
matter of the related proceeding, (ii) any such Losses resulted from an action,
claim or suit by any Person who purchased Registrable Warrant Shares,
Registrable Notes or Exchange Notes which are the subject thereof from such
Indemnified Party and (iii) it is established in the related proceeding that
such Indemnified Party failed to deliver or provide a copy of the Prospectus (as
amended or supplemented) to such Person with or prior to the confirmation of the
sale of such Registrable Warrant Shares, Registrable Notes or Exchange Notes
sold to such Person if required by applicable law, unless such failure to
deliver or provide a copy of the Prospectus (as amended or supplemented) was a
result of noncompliance by the Issuer with Section 6 of this Agreement. The
Company shall also indemnify underwriters, selling brokers, dealer managers and
similar securities industry professionals participating in the distribution,
their officers, directors, agents and employees and each Person who controls
such Persons (within the meaning of Section 5 of the Securities Act or Section
20(a) of the Exchange Act) to the same extent as provided above with respect to
the indemnification of the Holders or the Participating Broker-Dealer.
(b) INDEMNIFICATION BY HOLDER. In connection with any Registration
Statement, Prospectus or form of prospectus, any amendment or supplement
thereto, or any preliminary prospectus in which a Holder is participating, such
Holder shall furnish to the Company in writing such information as the Company
reasonably requests for use in connection with any Registration Statement,
Prospectus or form of prospectus, any amendment or supplement thereto, or any
preliminary prospectus and shall, without limitation as to time, indemnify and
hold harmless the Company, its directors and each Person, if any, who controls
the Company (within the meaning of Section 15 of the Securities Act and Section
20(a) of the Exchange Act), and the directors, officers, and partners of such
controlling persons, to the fullest extent lawful, from and against all Losses
arising out of or based upon any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus or form of
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the
-25-
circumstances under which they were made, not misleading to the extent, but only
to the extent, that such losses are finally judicially determined by a court of
competent jurisdiction in a final, unappealable order to have resulted solely
from an untrue statement or alleged untrue statement of a material fact or
omission or alleged omission of a material fact contained in or omitted from any
information so furnished in writing by such Holder to the Company expressly for
use therein. Notwithstanding the foregoing, in no event shall the liability of
any selling Holder be greater in amount than the dollar amount of the proceeds
(net of payment of all expenses) received by such Holder upon the sale of the
Registrable Notes or Registrable Warrant Shares giving rise to such
indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any Proceeding shall
be brought or asserted against any Person entitled to indemnity hereunder (an
"Indemnified Party"), such Indemnified Party shall promptly notify the party or
parties from which such indemnity is sought (the "Indemnifying Parties") in
writing; provided, that the failure to so notify the Indemnifying Parties shall
not relieve the Indemnifying Parties from any obligation or liability except to
the extent (but only to the extent) that it shall be finally determined by a
court of competent jurisdiction (which determination is not subject to appeal)
that the Indemnifying Parties have been prejudiced materially by such failure.
The Indemnifying Party shall have the right, exercisable by giving
written notice to an Indemnified Party, within 20 business days after receipt of
written notice from such Indemnified Party of such Proceeding, to assume, at its
expense, the defense of any such Proceeding, provided, that an Indemnified Party
shall have the right to employ separate counsel in any such Proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party or parties unless: (1) the
Indemnifying Party has agreed to pay such fees and expenses; or (2) the
Indemnifying Party shall have failed promptly to assume the defense of such
Proceeding or shall have failed to employ counsel reasonably satisfactory to
such Indemnified Party; or (3) the named parties to any such Proceeding
(including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party or any of its affiliates or controlling persons, and such
Indemnified Party shall have been advised by counsel that there may be one or
more defenses available to such Indemnified Party that are in addition to, or in
conflict with, those defenses available to the Indemnifying Party or such
affiliate or controlling person (in which case, if such Indemnified Party
notifies the Indemnifying Parties in writing that it elects to employ separate
counsel at the expense of the Indemnifying Parties, the Indemnifying Parties
shall not have the right to assume the defense and the reasonable fees and
expenses of such counsel shall be at the expense of the Indemnifying Party; it
being understood, however, that, the Indemnifying Party shall not, in connection
with any one such
-26-
Proceeding or separate but substantially similar or related Proceedings in the
same jurisdiction, arising out of the same general allegations or circumstances,
be liable for the fees and expenses or more than one separate firm of attorneys
(together with appropriate local counsel) at any time for such Indemnified
Party).
No Indemnifying Party shall be liable for any settlement of any such
Proceeding effected without its written consent, which shall not be unreasonably
withheld, but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such Proceeding, each Indemnifying Party
jointly and severally agrees, subject to the exceptions and limitations set
forth above, to indemnify and hold harmless each Indemnified Party from and
against any and all Losses by reason of such settlement or judgment. The
Indemnifying Party shall not consent to the entry of any judgment or enter into
any settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to each Indemnified Party of a release, in form and
substance reasonably satisfactory to the Indemnified Party, from all liability
in respect of such Proceeding for which such Indemnified Party would be entitled
to indemnification hereunder (whether or not any Indemnified Party is a party
thereto).
(d) CONTRIBUTION. If the indemnification provided for in this
Section 8 is unavailable to an Indemnified Party or is insufficient to hold such
Indemnified Party harmless for any Losses in respect of which this Section 8
would otherwise apply by its terms (other than by reason of exceptions provided
in this Section 8), then each applicable Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall have a joint and several obligation
to contribute to the amount paid or payable by such Indemnified Party as a
result of such Losses, in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party, on the one hand, and such Indemnified
Party, on the other hand, in connection with the actions, statements or
omissions that resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Party, on the one hand,
and Indemnified Party, on the other hand, shall be determined by reference to,
among other things, whether any untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by such Indemnifying Party or Indemnified Party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent any such statement or omission. The amount paid or payable
by an Indemnified Party as a result of any Losses shall be deemed to include any
legal or other fees or expenses incurred by such party in connection with any
Proceeding, to the extent such party would have been indemnified for such fees
or expenses if the indemnification provided for in Section 8(a) or 8(b) was
available to such party.
-27-
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8(d), a selling Holder shall not
be required to contribute, in the aggregate, any amount in excess of such
Holder's Maximum Contribution Amount. A selling Holder's "Maximum Contribution
Amount" shall equal the excess of (i) the aggregate proceeds received by such
Holder pursuant to the sale of such Registrable Notes, Exchange Notes or
Registrable Warrant Shares over (ii) the aggregate amount of damages that such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Section 8
are in addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
9. RULES 144 AND 144A
The Company covenants that it shall (a) file the reports required to
be filed by it (if so required) under the Securities Act and the Exchange Act in
a timely manner and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder of Registrable Notes, make
publicly available other information necessary to permit sales pursuant to Rule
144 and 144A and (b) take such further action as any Holder 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 pursuant to
the exemptions provided by Rule 144 and Rule 144A. Upon the request of any
Holder, the Company shall deliver to such ▇▇▇▇▇▇ a written statement as to
whether it has complied with such information and requirements.
10. UNDERWRITTEN REGISTRATIONS OF REGISTRABLE NOTES
If any of the Registrable Notes covered by any Shelf Registration is
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; provided, however, that such investment banker
or investment bankers and manager or managers must be reasonably acceptable to
the Issuer.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such ▇▇▇▇▇▇ (a) agrees to sell such ▇▇▇▇▇▇'s
Registrable Notes on the basis provided in
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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.
11. REGISTRATION OF REGISTRABLE WARRANT SHARES
(a) SHELF REGISTRATION OF REGISTRABLE WARRANT SHARES. The Company
shall, on or prior to the Warrant Shares Registration Filing Date, (i) file a
registration statement covering resales of the Warrant Shares (the "Warrant
Shares Registration Statement"), (ii) use its best efforts to cause the Warrant
Shares Registration Statement to be declared effective under the Securities Act
and (iii) use its best efforts to keep effective the Warrant Shares Registration
Statement until the earlier of the tenth anniversary of the Closing Date or such
time as all of the Warrants have been exercised. The Company shall, in the
event that a Warrant Shares Registration Statement is filed, provide to each
Holder copies of the Prospectus that is a part of the Warrant Shares
Registration Statement, notify each such Holder when the Warrant Shares
Registration Statement has become effective and take such other actions as are
required to permit unrestricted resales of the Warrant Shares. The Company
shall require a Holder that sells Warrant Shares pursuant to the Warrant Shares
Registration Statement to be named as a selling securityholder in the related
prospectus and to deliver a prospectus to purchasers, and any such Holder shall
be bound by the provisions of this Agreement that are applicable to such Holder
(including certain indemnification rights and obligations). Each Holder of the
Warrant Shares shall deliver information to be used in connection with the
Warrant Shares Registration Statement and provide comments on the Warrant Shares
Registration Statement within the time periods set forth in this Agreement in
order to have its Warrant Shares included in the Warrant Shares Registration
Statement.
(b) PIGGY-BACK REGISTRATION OF REGISTRABLE WARRANT SHARES. If at any
time after the Closing Date the Company proposes to file a registration
statement under the Securities Act with respect to an offering by the Company
for its own account or for the account of any holders of its Common Stock (other
than (i) a registration statement on Form S-4 or S-8 (or any substitute form
that may be adopted by the SEC), (ii) a registration statement filed in
connection with an exchange offer or offering of securities solely to the
Company's existing security holders or (iii) any Notes Registration Statement),
then the Company shall give written notice of such proposed filing to the
Holders of Registrable Warrant Shares as soon as practicable (but in no event
fewer than 20 days before the anticipated filing date), and such notice shall
offer such Holders the opportunity to register such number of Registrable
Warrant Shares as each Holder may request in writing within 20 days after
receipt of such written notice from the Company (which request shall specify
-29-
the Registrable Warrant Shares intended to be disposed of by such Selling Holder
and the intended method of distribution thereof) (a "Piggy-Back Registration").
The Company shall use its best efforts to keep such Piggy-Back Registration
continuously effective under the Securities Act until at least the earlier of
a)an aggregate of 180 days after the effective date thereof or b)the
consummation of the distribution by the Holders of all of the Registrable
Warrant Shares covered thereby. The Company shall use its best efforts to cause
the managing underwriter or underwriters, if any, of such proposed offering to
permit the Registrable Warrant Shares requested to be included in a Piggy-Back
Registration to be included on the same terms and conditions as any similar
securities of the Company or any other security holder included therein and to
permit the sale or other disposition of such Registrable Warrant Shares in
accordance with the intended method of distribution thereof. Any Selling Holder
shall have the right to withdraw its request for inclusion of its Registrable
Warrant Shares in any Registration Statement pursuant to this Section 11 by
giving written notice to the Company of its request to withdraw at any time
prior to the filing of such Registration Statement with the SEC. The Company
will pay all Warrant Shares Registration Expenses in connection with each
registration of Registrable Warrant Shares requested pursuant to this Section
11, and each Holder of Registrable Warrant Shares shall pay all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Warrant Shares pursuant to a Piggy-Back
Registration effected pursuant to this Section 11.
No registration effected under this Section 11, and no failure to
effect a registration under this Section 11, shall relieve the Company of its
obligations to effect a registration upon the request of Holders of Registrable
Notes pursuant to Sections 2 and 3 hereof, and no failure to effect a
registration under this Section 11 and to complete the sale of securities
registered thereunder in connection therewith shall relieve the Company of any
other obligation under this Agreement.
(c) PRIORITY IN PIGGY-BACK REGISTRATION. In a registration pursuant
to this Section 11 involving an underwritten offering, if the managing
underwriter or underwriters of such underwritten offering have informed, in
writing, the Company and the Selling Holders requesting inclusion in such
offering that in such underwriter's or underwriter's opinion the total number of
securities which the Company, the Selling Holders and any other Persons desiring
to participate in such registration intend to include in such offering is such
as to adversely affect the success of such offering, including the price at
which such securities can be sold, then the Company will be required to include
in such registration only the amount of securities which it is so advised should
be included in such registration. In such event: (x) in cases initially
involving the registration for sale of securities for the Company's own account,
securities shall be registered in such offering in the
-30-
following order of priority: ((i)first, the securities which the Company
proposes to register, ((ii)second, provided that no securities proposed to be
registered by the Company have been excluded from such registration, the
securities that have been requested to be included in such registration by the
Selling Holders, and ((iii)third, provided that no securities sought to be
included by the Selling Holders have been excluded from such registration, the
securities of other Persons entitled to exercise "piggy-back" registration
rights pursuant to contractual commitments of the Company (pro rata based on the
amount of securities sought to be registered by such Persons); and (y) in cases
not initially involving the registration for sale of securities for the
Company's own account, securities shall be registered in such offering in the
following order of priority: (i) first, the securities of any Person whose
exercise of a "demand" registration right pursuant to a contractual commitment
of the Company is the basis for the registration, (ii) second, provided that no
securities of any Person whose exercise of a "demand" registration right
pursuant to a contractual commitment of the Company is the basis for such
registration have been excluded from such registration, the securities requested
to be included in such registration by the Selling Holders pursuant to this
Agreement, (iii) third, provided that no securities sought to be included by the
Selling Holders or such Persons have been excluded from such registration,
securities of other Persons entitled to exercise "piggy-back" registration
rights pursuant to contractual commitments of the Company (pro rata based on the
amount of securities sought be registered by such Persons) and (iv) fourth,
provided that no securities sought to be included by other Persons entitled to
exercise "piggy-back" registration rights pursuant to such contractual
commitments have been excluded from such registration, any securities which the
Company proposes to register.
(d) SUSPENSION OF SALES, ETC. Subject to the next sentence of this
paragraph, the Company shall be entitled to postpone, for a reasonable period of
time, the effectiveness of, or suspend the rights of any Selling Holders to make
sales pursuant to any Warrant Shares Registration Statement otherwise required
to be prepared, filed and kept effective by it under this Section 11; provided,
however, that the duration of such postponement or suspension may not exceed the
earlier to occur of (A) 15 days after the cessation of the circumstances
described in the next sentence of this paragraph on which such postponement or
suspension is based or (B) 120 days after the date of the determination of the
Board of Directors referred to in the next sentence. Such postponement or
suspension may only be effected if the Board of Directors of the Company
determines in good faith that the effectiveness of, or sales pursuant to, such
Warrant Shares Registration Statement would materially impede, delay or
interfere with any significant financing, offer or sale of securities,
acquisition, corporate reorganization or other significant transaction involving
the Company or any of its affiliates or require disclosure of material
information which
-31-
the Company has a bona fide business purpose for preserving as confidential. If
the Company shall so postpone the effectiveness of, or suspend the rights of any
Selling Holders to make sales pursuant to, a Warrant Shares Registration
Statement, it shall, as promptly as possible, notify any Selling Holders of such
determination, and the Selling Holders shall (y) have the right, in the case of
a postponement of the effectiveness of a Warrant Shares Registration Statement,
upon the affirmative vote of Selling Holders of not less than a majority of the
Registrable Warrant Shares to be included in such Warrant Shares Registration
Statement, to withdraw the request for registration by giving written notice to
the Company within 10 days after receipt of such notice or (z) in the case of a
suspension of the right to make sales, receive an extension of the registration
period referred to in Section 11(a) hereof equal to the number of days of the
suspension.
(e) EXCLUSION OF REGISTRABLE WARRANT SHARES. The Company shall not
be required by this Section 11 to include Registrable Warrant Shares in a
Piggy-Back Registration if (i) in the written opinion of outside counsel to the
Company, addressed to the Holders of Registrable Warrant Shares and delivered to
them, the Holders of such Registrable Warrant Shares seeking registration would
be free to sell all such Registrable Warrant Shares within the current calendar
quarter without registration under Rule 144, which opinion may be based in part
upon the representation by the Holders of such Registrable Warrant Shares
seeking registration, which representation shall not be unreasonably withheld,
that each such Holder is not an affiliate of the Company within the meaning of
the Securities Act, and (ii) all requirements under the Securities Act for
effecting such sales are satisfied at such time.
(f) OBLIGATIONS OF SELLING HOLDERS. The Company's obligations under
this Section 11 shall be subject to the obligations of the Selling Holders,
which the Selling Holders acknowledge, to furnish all information and materials
and to take any and all actions as may be required under applicable requirements
of the SEC and to obtain any acceleration of the effective date of a Warrant
Shares Registration Statement.
(g) NO SPECIAL AUDIT. The Company shall not be obligated to cause
any special audit to be undertaken in connection with any Piggy-Back
Registration unless such audit is requested by the underwriters with respect to
such Piggy-Back Registration.
12. MISCELLANEOUS
(a) NO INCONSISTENT AGREEMENTS. The Issuer has not entered, as of
the date hereof, and the Issuer shall not enter, after the date of this
Agreement, into any agreement with respect to any of its securities that is
inconsistent with the rights granted to the Holders of Securities in this
Agreement or
-32-
otherwise conflicts with the provisions hereof. The Issuer has not entered and
will not enter into any agreement with respect to any of its securities which
will grant to any Person piggy-back rights with respect to a Notes Registration
Statement or a Warrant Shares Registration Statement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE WARRANT SHARES OR REGISTRABLE
NOTES. The Company shall not, directly or indirectly, take any action with
respect to the Registrable Warrant Shares or Registrable Notes as a class that
would adversely affect the ability of the Holders to include such Registrable
Warrant Shares or 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 (A) in circumstances that would adversely affect any Holders of
Registrable Warrant Shares or Registrable Notes, the Holders of a majority of
the Registrable Warrant Shares (treating as outstanding for this purpose Warrant
Shares issuable on exercise of unexercised Warrants) or the Holders of not less
than a majority in aggregate principal amount of the then outstanding
Registrable Notes, as the case may be, and (B) in circumstances that would
adversely affect 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
8 and this Section 12(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 Participating Broker-Dealer Holder of
Registrable Warrant Shares or Registrable Notes or Exchange Notes, as the case
may be, disposed of pursuant to any Registration Statement). 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 tendered pursuant to the Exchange
Offer or sold pursuant to a Notes Registration Statement and that does not
directly or indirectly affect, impair, limit or compromise the rights of other
Holders of Registrable Notes may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being tendered or being sold
by such Holders pursuant to such Notes Registration Statement.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(1) if to a Holder of Securities or to any Participating
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may
-33-
be, set forth on the records of the registrar of the Warrants or the Notes,
with a copy in like manner to the Initial Purchaser as follows:
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(2) if to the Initial Purchaser, at the address specified in
Section 12(d)(1);
(3) if to the Issuer, as follows:
Discovery Zone, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Executive 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 United States mail, postage prepaid, if mailed, one
business day after being deposited in the United States mail, postage prepaid,
if mailed, one business day after being timely delivered to a next-day air
courier guaranteeing overnight delivery, 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.
(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, including, without limitation and without the need for an express
assignment, subsequent Holders of Securities.
(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
-34-
YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAW. THE COMPANY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY TO DO SO UNDER APPLICABLE LAW,
TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND
ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. THE COMPANY IRREVOCABLY CONSENTS, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
TO THE COMPANY AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS
AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY HOLDER TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
(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 ISSUER OR ITS AFFILIATES. Whenever the
consent or approval of Holders of a specified percentage of Securities is
required hereunder, Securities held by the Issuer or its affiliates (as such
term is defined in Rule 405 under the Securities Act) shall not be counted in
determining whether such comment or approval was given by the Holders of such
required percentage.
(k) THIRD PARTY BENEFICIARIES. Holders and Participating
Broker-Dealers are intended third party beneficiaries of this Agreement and this
Agreement may be enforced by such Persons.
-35-
(l) ENTIRE AGREEMENT. This Agreement, together with the Purchase
Agreement, the Indenture, the Warrants, the Warrant Agreement and the Collateral
Agreements, 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 contained herein and therein and any and all prior oral or written
agreements, representations, or warranties, contracts, understanding,
correspondence, conversations and memoranda between the Initial Purchaser on the
one hand and the Issuer 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
DISCOVERY ZONE, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer and President
ACCEPTED AND AGREED TO:
JEFFERIES & COMPANIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
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