EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated June 23, 2005 (the "Agreement")
is entered into by and among The Goodyear Tire & Rubber Company, an Ohio
corporation (the "Company"), the Guarantors named in the Purchase Agreement (the
"Guarantors"), Citibank Global Markets Inc., BNP Paribas Securities Corp.,
Credit Suisse First Boston LLC, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇.▇. ▇▇▇▇▇▇ Securities
Inc., Calyon Securities (USA) Inc., Deutsche Bank Securities, Inc., Natexis
Bleichroeder Inc. and KBC Financial Products USA, Inc. (the "Initial
Purchasers").
The Company, the Guarantors and the Initial Purchasers are parties to the
Purchase Agreement dated as of June 20, 2005 (the "Purchase Agreement"), which
provides for the sale by the Company to the Initial Purchasers of $400,000,000
aggregate principal amount of the Company's 9.00% Senior Notes due 2015 (the
"Securities"), which will be guaranteed on a senior basis by each of the
Guarantors. As an inducement to the Initial Purchasers to enter into the
Purchase Agreement, the Company and the Guarantors have agreed to provide to the
Initial Purchasers and the Holders (as defined below) from time to time of the
Securities the registration rights set forth in this Agreement. The execution
and delivery of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the following meanings:
"Agreement" shall have the meaning set forth in the preamble.
"Business Day" shall mean any day that is not a Saturday, Sunday or other
day on which banking institutions are not required by law or regulation to be
open in the State of New York.
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and shall also
include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Exchange Dates" shall have the meaning set forth in Section 2(a)(ii)
hereof.
"Exchange Offer" shall mean the exchange offer by the Company and the
Guarantors of Exchange Securities for Registrable Securities pursuant to Section
2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference therein.
"Exchange Securities" shall mean senior notes issued by the Company and
guaranteed by the Guarantors under the Indenture containing terms substantially
identical to the Securities (except that the Exchange Securities will not be
subject to restrictions on transfer or to any increase in annual interest rate
for failure to comply with this Agreement) and to be offered to Holders of
Securities in exchange for Securities pursuant to the Exchange Offer.
"Guarantors" shall have the meaning set forth in the preamble and shall
also include any Guarantor's successors.
"Holders" shall mean the Initial Purchasers, for so long as they own any
Registrable Securities, and each of their successors, assigns and direct and
indirect transferees who become owners of Registrable Securities under the
Indenture; provided that for purposes of Sections 5 and 6 of this Agreement, the
term "Holders" shall include Participating Broker-Dealers.
"Indemnified Person" shall have the meaning set forth in Section 7(c)
hereof.
"Indemnifying Person" shall have the meaning set forth in Section 7(c)
hereof.
"Indenture" shall mean the Indenture relating to the Securities and the
Exchange Securities dated as of June 23, 2005 among the Company, the Guarantors
and ▇▇▇▇▇ Fargo Bank, N.A., as trustee, and as the same may be amended from time
to time in accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Inspector" shall have the meaning set forth in Section 4(m) hereof.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of outstanding Registrable Securities; provided that whenever
the consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities owned directly or
indirectly by the Company or any of its affiliates (other than subsequent
Holders of Registrable Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage or amount.
"Participating Broker-Dealer" shall have the meaning set forth in Section
6(a) hereof.
"Person" shall mean an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any
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prospectus supplement, including a prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securities covered by a
Shelf Registration Statement, and by all other amendments and supplements to
such prospectus, and in each case including any document incorporated by
reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the Securities; provided that the
Securities shall cease to be Registrable Securities (i) when a Registration
Statement with respect to such Securities has been declared effective under the
Securities Act and such Securities have been exchanged or disposed of pursuant
to such Registration Statement, (ii) when such Securities are eligible to be
sold pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act or (iii) when such Securities cease to be
outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company and the Guarantors with this
Agreement, including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees and
expenses, (ii) all reasonable fees and expenses incurred in connection with
compliance with state securities or blue sky laws (including reasonable fees and
disbursements of one counsel for the Underwriters and Holders in connection with
blue sky qualification of any Exchange Securities or Registrable Securities),
(iii) all reasonable expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any Registration Statement
or any Prospectus and any amendments or supplements thereto, any underwriting
agreements, securities sales agreements or other similar agreements and any
other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all reasonable fees and
disbursements relating to the qualification of the Indenture under applicable
securities laws, (vi) the fees and disbursements of the Trustee and its counsel,
(vii) the reasonable fees and disbursements of counsel for the Company and the
Guarantors and, in the case of a Shelf Registration Statement, the reasonable
fees and disbursements of one counsel for the Holders (which counsel shall be
selected by the Majority Holders and which counsel may also be counsel for the
Initial Purchasers; provided that such counsel shall be reasonably acceptable to
the company) and (viii) the fees and disbursements of the independent public
accountants of the Company and the Guarantors, including the expenses of any
special audits or "comfort" letters required by or incident to the performance
of and compliance with this Agreement, but excluding fees and expenses of
counsel to the Underwriters (other than fees and expenses set forth in clause
(ii) above) or the Holders and underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company and the Guarantors that covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement and all
amendments and supplements to any such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and any document incorporated by reference
therein.
"Rules" shall have the meaning set forth in Section 4(r).
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"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Effectiveness Period" shall have the meaning set forth in Section
3(a) hereof.
"Shelf Registration" shall mean a registration effected pursuant to
Section 3(a) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company and the Guarantors that covers all or a portion of the
Registrable Securities (but no other securities unless approved by the Holders
whose Registrable Securities are to be covered by such Shelf Registration
Statement) on an appropriate form under Rule 415 under the Securities Act, or
any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and any document incorporated by reference therein.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended from time to time.
"Trustee" shall mean ▇▇▇▇▇ Fargo Bank, N.A., the trustee under the
Indenture.
"Underwriter" shall have the meaning set forth in Section 5.
"Underwritten Offering" shall mean an offering in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
2. Registration Under the Securities Act. (a) To the extent not prohibited
by any applicable law or applicable interpretations of the staff of the SEC, the
Company and the Guarantors shall, at their own cost, use their commercially
reasonable efforts to prepare and cause to be filed an Exchange Offer
Registration Statement covering an offer to the Holders to exchange all the
Registrable Securities for Exchange Securities. The Company and the Guarantors
shall commence the Exchange Offer promptly after the Exchange Offer Registration
Statement is declared effective by the SEC and use commercially reasonable
efforts to complete the Exchange Offer not later than 60 days after such
effective date.
The Company and the Guarantors shall commence the Exchange Offer by
mailing the related Prospectus, appropriate letters of transmittal and other
accompanying documents to each Holder stating, in addition to such other
disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that
all Registrable Securities validly tendered and not properly withdrawn
will be accepted for exchange;
(ii) the date of acceptance for exchange (which shall be a period of at least
20 Business Days from the date such notice is mailed) (the "Exchange
Date");
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(iii) that any Registrable Security not tendered will remain outstanding and
continue to accrue interest but will not retain any rights under this
Agreement;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant
to the Exchange Offer will be required to surrender such Registrable
Security, together with the appropriate letters of transmittal, to the
institution and at the address (located in the Borough of Manhattan, The
City of New York) and in the manner specified in the notice, prior to the
close of business on the Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than
the close of business on the Exchange Date, by sending to the institution
and at the address (located in the Borough of Manhattan, The City of New
York) specified in the notice, a communication specified in the letter of
transmittal setting forth the name of such Holder, the principal amount of
Registrable Securities delivered for exchange and a statement that such
Holder is withdrawing its election to have such Registrable Securities
exchanged.
As a condition to participating in the Exchange Offer, a Holder will be
required to represent to the Company and the Guarantors that (i) any Exchange
Securities to be received by it will be acquired in the ordinary course of its
business, (ii) at the time of the commencement of the Exchange Offer it has no
arrangement or understanding with any Person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Securities in
violation of the provisions of the Securities Act, (iii) it is not an
"affiliate" (within the meaning of Rule 405 under Securities Act) of the Company
or any Guarantor and (iv) if such Holder is a broker-dealer that will receive
Exchange Securities for its own account in exchange for Registrable Securities
that were acquired as a result of market-making or other trading activities,
then such Holder will deliver a Prospectus in connection with any resale of such
Exchange Securities.
As soon as practicable after the Exchange Date, the Company and the
Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly
tendered and not properly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all
Registrable Securities or portions thereof so accepted for exchange by the
Company and issue, and cause the Trustee to promptly authenticate and
deliver to each Holder, Exchange Securities equal in principal amount to
the principal amount of the Registrable Securities surrendered by such
Holder.
The Company and the Guarantors shall use commercially reasonable efforts
to complete the Exchange Offer as provided above and shall comply in all
material respects with the applicable requirements of the Securities Act, the
Exchange Act and other applicable laws and regulations in connection with the
Exchange Offer. The Exchange Offer shall not be subject to any conditions, other
than that the Exchange Offer does not violate any applicable law or applicable
interpretations of the Staff of the SEC.
3. Shelf Registration. (a) In the event that (i) the Company and the
Guarantors determine that the Exchange Offer Registration provided for in
Section 2(a) above is not
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available or may not be completed as soon as practicable after the Exchange Date
because it would violate any applicable law or applicable interpretations of the
staff of the SEC, (ii) the Exchange Offer is not for any other reason completed
by March 20, 2006 or (iii) upon completion of the Exchange Offer any Initial
Purchaser shall so request in connection with any offering or sale of
Registrable Securities that were ineligible to be exchanged in the Exchange
Offer, the Company and the Guarantors shall, at their own cost, prepare and use
commercially reasonable efforts to cause to be filed as soon as reasonably
practicable after such determination, date or request, as the case may be, a
Shelf Registration Statement providing for the sale of the Registrable
Securities by the Holders thereof from time to time in accordance with the
methods of distribution set forth in the Shelf Registration Statement and Rule
415 of the Securities Act (the "Shelf Registration") and to have such Shelf
Registration Statement declared effective as soon as reasonably practicable by
the SEC; provided that the Company and the Guarantors shall not be required to
file such Shelf Registration Statement or cause such Shelf Registration
Statement to become and stay effective if and when, in the case of clauses (i)
or (ii) above, the Exchange Offer Registration is available.
In the event that the Company and the Guarantors are required to file a
Shelf Registration Statement pursuant to clause (iii) of the preceding sentence,
the Company and the Guarantors shall use commercially reasonable efforts to file
and have declared effective by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Registrable Securities
and a Shelf Registration Statement (which may be a combined Registration
Statement with the Exchange Offer Registration Statement) with respect to offers
and sales of Registrable Securities held by the Initial Purchasers after
completion of the Exchange Offer.
The Company and the Guarantors agree to use commercially reasonable
efforts to keep the Shelf Registration Statement continuously effective until
the date that is two years from the date hereof or such shorter period that will
terminate when all the Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement (the
"Shelf Effectiveness Period"). The Company and the Guarantors further agree to
supplement or amend the Shelf Registration Statement and the related Prospectus
if required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement or
by the Securities Act or by any other rules and regulations thereunder for shelf
registration or if reasonably requested by a Holder of Registrable Securities
with respect to information relating to such Holder, and to use commercially
reasonable efforts to cause any such amendment to become effective and such
Shelf Registration Statement and Prospectus to become usable as soon as
reasonably practicable thereafter. The Company and the Guarantors agree to
furnish to the Holders of Registrable Securities named in the Shelf Registration
Statement copies of any such supplement or amendment promptly after its being
used or filed with the SEC.
(b) The Company and the Guarantors shall pay all Registration Expenses in
connection with the performance by the Company and the Guarantors of their
obligations pursuant to this Agreement. Each Holder shall pay their own costs
and expenses, including all underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder's Registrable
Securities pursuant to the Shelf Registration Statement or the Exchange Offer
Registration Statement.
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(c) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 3(a) hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC.
(d) In the event that either the Exchange Offer is not completed or the
Shelf Registration Statement, if required hereby, is not declared effective on
or prior to March 20, 2006, the interest rate on the Registrable Securities will
be increased by (x) 0.25% per annum for the first 90-day period immediately
following March 20, 2006 and (y) an additional 0.25% per annum with respect to
each subsequent 90-day period, up to a maximum of 1.00% per annum of additional
interest, until the Exchange Offer is completed or the Shelf Registration
Statement, if required hereby, is declared effective by the SEC or the
Securities become freely tradable under the Securities Act.
If the Shelf Registration Statement has been declared effective and
thereafter either ceases to be effective or the Prospectus contained therein
ceases to be usable at any time during the Shelf Effectiveness Period, and such
failure to remain effective or usable exists for more than 45 days (whether or
not consecutive) in any 12-month period, then the interest rate on the
Registrable Securities will be increased by (x) 0.25% per annum for the first
90-day period immediately following such 45th day of ineffectiveness or lack of
usability and (y) an additional 0.25% per annum with respect to each such
subsequent 90-day period of ineffectiveness or lack of usability, up to a
maximum of 1.00% per annum of additional interest, commencing on the 45th day in
such 12-month period and ending on such date that the Shelf Registration
Statement has again been declared effective or the Prospectus again becomes
usable.
The events described in the preceding two paragraphs are collectively
referred to as "Registration Defaults." Upon the cure of all Registration
Defaults relating to the Registrable Securities, the accrual of additional
interest with respect to the Registrable Securities will cease. In no event
shall such additional interest ever be greater than 1.00% per annum.
(e) Without limiting the remedies available to the Initial Purchasers and
the Holders, the Company and the Guarantors acknowledge that any failure by the
Company or the Guarantors to comply with their obligations under Section 2(a)
and Section 3(a) hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law, that it
will not be possible to measure damages for such injuries precisely and that, in
the event of any such failure, the Initial Purchasers or any Holder may obtain
such relief as may be required to specifically enforce the Company's and the
Guarantors' obligations under Section 2(a) and Section 3(a) hereof; provided
that the Initial Purchasers shall not be entitled to any monetary damages other
than the additional interest provided for in this Agreement.
4. Registration Procedures. In connection with their obligations pursuant
to Section 2(a) and Section 3(a) hereof, the Company and the Guarantors shall as
expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected by
the Company and the Guarantors, (y) shall, in the case of a Shelf Registration,
be available for the sale of the Registrable Securities by the selling Holders
thereof and (z) shall comply as to form in all material respects with the
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requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith; and use commercially reasonable
efforts to cause such Registration Statement to become effective and remain
effective for the applicable period in accordance with Section 2 and Section 3
hereof, as applicable;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period in accordance with
Section 2 and Section 3 hereof, as applicable ,and cause each Prospectus to be
supplemented by any required prospectus supplement and, as so supplemented, to
be filed pursuant to Rule 424 under the Securities Act; and keep each Prospectus
current during the period described in Section 4(3) of and Rule 174 under the
Securities Act that is applicable to transactions by brokers or dealers with
respect to the Registrable Securities or Exchange Securities;
(c) in the case of a Shelf Registration, or in the case of an Exchange
Offer Registration Statement, with respect to Participating Broker-Dealers that
hold Registrable Securities as a result of market-making or other trading
activities, furnish to each Holder of Registrable Securities, to counsel for the
Initial Purchasers, to counsel for such Holders and to each Underwriter of an
Underwritten Offering of Registrable Securities, if any, without charge, as many
copies of each Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto, as reasonably requested, in order to facilitate
the sale or other disposition of the Registrable Securities thereunder; and the
Company and the Guarantors consent to the use of such Prospectus and any
amendment or supplement thereto in accordance with applicable law by each of the
selling Holders of Registrable Securities and any such Underwriters in
connection with the offering and sale of the Registrable Securities covered by
and in the manner described in such Prospectus or any amendment or supplement
thereto in accordance with applicable law;
(d) use commercially reasonable efforts to register or qualify the
Registrable Securities under all applicable state securities or blue sky laws of
such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC; provide all
such information as may be required by the National Association of Securities
Dealers, Inc. in connection with an offering under a Shelf Registration
Statement of the Registrable Securities (including, without limitation, such as
may be required by Rule 2710 or 2720 thereunder), and cooperate with the Holders
in connection with any filings required to be made with the National Association
of Securities Dealers, Inc.; and do any and all other acts and things that may
be reasonably necessary or advisable to enable each Holder to complete the
disposition in each such jurisdiction of the Registrable Securities owned by
such Holder; provided that neither the Company nor any Guarantor shall be
required to (i) qualify as a foreign corporation or other entity or as a dealer
in securities in any such jurisdiction where it would not otherwise be required
to so qualify, (ii) file any general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it
is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of Registrable
Securities included within the coverage of the Shelf Registration Statement,
counsel for such Holders and counsel for the Initial Purchasers promptly and, if
requested by any such Holder or counsel, confirm such advice in writing (i) when
a Registration Statement has become effective and when
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any post-effective amendment thereto has been filed and becomes effective, (ii)
of any request by the SEC or any state securities authority for amendments and
supplements to a Registration Statement and Prospectus or for additional
information after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of the Company or any
Guarantor contained in any underwriting agreement, securities sales agreement or
other similar agreement, if any, relating to an offering of such Registrable
Securities cease to be true and correct in all material respects, (v) if the
Company or any Guarantor receives any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding for such purpose, (vi) of the
happening of any event during the period a Registration Statement is effective
that makes any statement made in such Registration Statement or the related
Prospectus untrue in any material respect or that requires the making of any
changes in such Registration Statement or Prospectus in order to make the
statements therein not misleading (vii) of the suspension by the Company, in the
exercise of its reasonable judgment, of the use of the Registration Statement or
Prospectus in order to avoid premature disclosure of material non-public
information, the premature disclosure of which the Company determines, in its
good faith judgment, would be harmful to the Company and (viii) of any
determination by the Company or any Guarantor, after consultation with counsel,
that a post-effective amendment to a Registration Statement is necessary;
(f) use commercially reasonable efforts to obtain (i) the withdrawal of
any order suspending the effectiveness of a Registration Statement and the use
of any related Prospectus and (ii) the lifting of any suspension of the
qualification (or exemption from qualification) of any of the Registrable
Securities for offer or sale in any jurisdiction in which they have been
qualified for sale, in each case as soon as reasonably practicable, and shall
provide notice to each Holder and the Initial Purchasers of the withdrawal of
any such orders or suspensions;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without any
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends and enable such Registrable Securities to be
issued in such denominations and registered in such names (consistent with the
provisions of the Indenture) as the selling Holders may reasonably request at
least five Business Days prior to the closing of any sale of Registrable
Securities;
(i) in the case of a Shelf Registration or an Exchange Offer Registration,
upon the occurrence of any event contemplated by Section 4(e)(vi) hereof, use
commercially reasonable efforts to prepare and file with the SEC a supplement or
post-effective amendment to a Registration Statement or the related Prospectus
or any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to purchasers of the
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Registrable Securities, such Prospectus will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and the Company and the Guarantors shall notify the
Holders of Registrable Securities included in the coverage of the Shelf
Registration Statement or the Exchange Offer Registration Statement, as the case
may be, to suspend use of the Prospectus or as promptly as practicable after the
occurrence of such an event, and such Holders hereby agree to suspend use of the
Prospectus until the Company and the Guarantors have amended or supplemented the
Prospectus to correct such misstatement or omission (provided that the
provisions of this section shall not otherwise limit the obligation of the
Company to pay additional interest pursuant to Section 3(d));
(j) within a reasonable time (but in any event within three Business Days)
prior to the filing of any Registration Statement, any Prospectus, any amendment
to a Registration Statement or amendment or supplement to a Prospectus or of any
document that is to be incorporated by reference into a Registration Statement
or Prospectus after initial filing of a Registration Statement, provide copies
of such document to the Initial Purchasers and their counsel (and, in the case
of a Shelf Registration Statement, to the Holders of Registrable Securities
included in the coverage of the Shelf Registration Statement and their counsel)
and make such of the representatives of the Company and the Guarantors as shall
be reasonably requested by the Initial Purchasers or their counsel (and, in the
case of a Shelf Registration Statement, to the Holders of Registrable Securities
included in the coverage of the Shelf Registration Statement and their counsel)
available for discussion of such document; and the Company and the Guarantors
shall not file any Registration Statement, Prospectus, amendment of or
supplement to a Registration Statement or a Prospectus, or any document that is
to be incorporated by reference into a Registration Statement or a Prospectus
after initial filing of a Registration Statement, of which the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, the Holders of Registrable Securities included in the coverage of the
Shelf Registration Statement and their counsel) shall not have previously been
advised and furnished a copy pursuant to this paragraph or to which the Initial
Purchasers or their counsel (and, in the case of a Shelf Registration Statement,
the Holders of Registrable Securities included in the coverage of the Shelf
Registration Statement or their counsel) shall reasonably object within a
reasonable period of time after receipt of such documents and in each case after
having been afforded the opportunity to discuss such matters with the Company
and the Guarantors;
(k) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture Act in
connection with the registration of the Exchange Securities or Registrable
Securities, as the case may be; cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the Indenture to be
so qualified in accordance with the terms of the Trust Indenture Act; and
execute, and use commercially reasonable efforts to cause the Trustee to
execute, all documents as may be required to effect such changes and all other
forms and documents required to be filed with the SEC to enable the Indenture to
be so qualified in a timely manner;
(m) in the case of a Shelf Registration, or in the case of an Exchange
Offer Registration Statement, with respect to Participating Broker-Dealers that
hold Registrable
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Securities as a result of market-making or other trading activities, make
available for inspection by a representative of the Holders of the Registrable
Securities included in the coverage of the Shelf Registration Statement (an
"Inspector"), any Underwriter participating in any disposition pursuant to such
Shelf Registration Statement, and attorneys and accountants (but in any event,
only one law firm and one accounting firm to represent the Holders, in each case
selected by the Majority Holders and reasonably acceptable to the Company)
designated by the Holders, at reasonable times and in a reasonable manner, all
pertinent financial and other records, documents and properties of the Company
and the Guarantors, and use commercially reasonable efforts to cause the
respective officers, directors and employees of the Company and the Guarantors
to supply all information reasonably requested by any such Inspector,
Underwriter, attorney or accountant in connection with a Shelf Registration
Statement; provided that if any such information is identified by the Company or
any Guarantor as being confidential or proprietary, each Person receiving such
information shall agree in writing with Company pursuant to a confidentiality
agreement in customary form to keep such information confidential.
(n) in the case of a Shelf Registration, use commercially reasonable
efforts to cause all Registrable Securities to be reserved for listing on any
securities exchange or any automated quotation system on which similar
securities issued or guaranteed by the Company or any Guarantor are then listed
no later than the date such Shelf Registration Statement is declared effective,
and, cause all such Registrable Securities to be so listed, in all cases to the
extent such Registrable Securities satisfy applicable listing requirements;
(o) in the case of a Shelf Registration Statement, if reasonably requested
by any Holder of Registrable Securities covered by a Registration Statement,
promptly incorporate in a Prospectus supplement or post-effective amendment such
information with respect to such Holder as such Holder reasonably requests to be
included therein and make all required filings of such Prospectus supplement or
such post-effective amendment after the Company has received notification of the
matters to be incorporated in such filing, amendment or supplement; provided
that the Company shall not be obligated to file more than one post-effective
amendment or supplement in any 30-day period as a result of any such request;
and
(p) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions reasonably requested by the Holders
in connection therewith in order to expedite or facilitate the disposition of
such Registrable Securities including, but not limited to, an Underwritten
Offering (if requested by the Majority Holders) and in such connection, use
commercially reasonable efforts (i) to the extent possible, make such
representations and warranties to the Holders and any Underwriters of such
Registrable Securities with respect to the business of the Company and its
subsidiaries, the Registration Statement or Prospectus and documents
incorporated by reference or deemed incorporated by reference, if any, in each
case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested, (ii) obtain opinions of counsel to the Company and the Guarantors
(which counsel and opinions, in form, scope and substance, shall be reasonably
satisfactory to the Holders and such Underwriters and their respective counsel)
addressed to each selling Holder and Underwriter of Registrable Securities,
covering the matters customarily covered in opinions requested in underwritten
offerings, (iii) obtain "comfort" letters from the independent certified public
accountants of the Company and the Guarantors (and, if necessary, any other
certified public accountant of any subsidiary of the Company or any
11
Guarantor, or of any business acquired by the Company or any Guarantor for which
financial statements and financial data are or are required to be included in
the Registration Statement) addressed to each selling Holder and Underwriter of
Registrable Securities, such letters to be in customary form and covering
matters of the type customarily covered in "comfort" letters in connection with
underwritten offerings and (iv) deliver such documents and certificates as may
be reasonably requested by the Majority Holders of the Registrable Securities
being sold or the Underwriters, and which are customarily delivered in
underwritten offerings, to evidence the continued validity of the
representations and warranties of the Company and the Guarantors made pursuant
to clause (i) above and to evidence compliance with any customary conditions
contained in an underwriting agreement.
(q) In the case of a Shelf Registration Statement, the Company may require
each Holder of Registrable Securities to furnish to the Company such information
regarding such Holder and the proposed disposition by such Holder of such
Registrable Securities as the Company and the Guarantors may from time to time
reasonably request in writing.
(r) In the case of a Shelf Registration Statement, in the event that any
broker-dealer registered under the Exchange Act shall underwrite any Registrable
Securities or participate as a member of an underwriting syndicate or selling
group or "assist in the distribution" (within the meaning of the Conduct Rules
(the "Rules") of the National Association of Securities Dealers, Inc.) thereof,
whether as a Holder of such Registrable Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or otherwise,
the Company will, to the extent requested by such broker-dealer, assist such
broker-dealer in complying with the requirements of such Rules, including,
without limitation, by (i) if such Rules, including Rule 2720, shall so require,
engaging a "qualified independent underwriter" (as defined in Rule 2720) to
participate in the preparation of the Shelf Registration Statement relating to
such Registrable Securities, to exercise usual standards of due diligence in
respect thereto and, if any portion of the offering contemplated by such Shelf
Registration Statement is an underwritten offering or is made through a
placement or sales agent, to recommend the yield of such Registrable Securities,
(ii) indemnifying any such qualified independent underwriter to the extent of
the indemnification of underwriters provided in Section 7 hereof and (iii)
providing such information to such broker-dealer as is reasonably requested and
may be required in order for such broker-dealer to comply with the requirements
of the Rules; provided that the Company shall not be responsible for the fees or
expenses of any such qualified independent underwriter or any expenses incurred
by any such broker-dealer in connection with its compliance with the Rules.
(s) In the case of a Shelf Registration Statement, each Holder of
Registrable Securities agrees that, upon receipt of any notice from the Company
and the Guarantors of the happening of any event of the kind described in
clauses (ii), (iii), (v), (vii) and (viii) of Section 4(e) hereof, such Holder
will forthwith discontinue disposition of Registrable Securities pursuant to a
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 4(i) hereof and, if
so directed by the Company and the Guarantors, such Holder will deliver to the
Company and the Guarantors all copies in its possession, other than permanent
file copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities that is current at the time of receipt of such notice.
12
If the Company and the Guarantors shall give any such notice pursuant to
this Section 4(s) or Section 4(i) hereof to suspend the disposition of
Registrable Securities pursuant to a Registration Statement, the Company and the
Guarantors shall extend the period during which the Registration Statement shall
be maintained effective pursuant to this Agreement by the number of days during
the period from and including the date of the giving of such notice to and
including the date when the Holders shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions. Any
suspension shall be subject to the applicable increases in the interest rate
borne by the Registrable Securities pursuant to Section 3(d) hereof. The Company
and the Guarantors may not suspend the disposition of Registrable Securities for
any of the reasons specified in Section 4(e)(vi) or (vii) for more than 100 days
in any 365 day period.
5. Underwritten Offerings. The Holders of Registrable Securities covered
by a Shelf Registration Statement who desire to do so may sell such Registrable
Securities in an Underwritten Offering. In any such Underwritten Offering under
a Shelf Registration Statement, the investment banker or investment bankers and
manager or managers that will administer the offering will be selected by the
Majority Holders of the Registrable Securities included in such offering, and
must be reasonably acceptable to the Company (each an "Underwriter").
6. Participation of Broker-Dealers in Exchange Offer. (a) The staff of the
SEC has taken the position that any broker-dealer that receives Exchange
Securities for its own account in the Exchange Offer in exchange for Securities
that were acquired by such broker-dealer as a result of market-making or other
trading activities (a "Participating Broker-Dealer") may be deemed to be an
"underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Securities.
The staff of the SEC has also taken the position that if the Prospectus
contained in the Exchange Offer Registration Statement includes a plan of
distribution containing a statement to the above effect and the means by which
Participating Broker-Dealers may resell the Exchange Securities, without naming
the Participating Broker-Dealers or specifying the amount of Exchange Securities
owned by them, such Prospectus may be delivered by Participating Broker-Dealers
to satisfy their prospectus delivery obligation under the Securities Act in
connection with resales of Exchange Securities for their own accounts, so long
as the Prospectus otherwise meets the requirements of the Securities Act.
(b) In light of the above, and notwithstanding the other provisions of
this Agreement, the Company and the Guarantors agree to use commercially
reasonable efforts to amend or supplement the Prospectus contained in the
Exchange Offer Registration Statement, as would otherwise be contemplated by
Section 4(i), if requested by one or more Participating Broker-Dealers, in order
to expedite or facilitate the disposition of any Exchange Securities by
Participating Broker-Dealers consistent with the positions of the Staff recited
in Section 6(a) above, for the period equal to the lesser of (i) 180 days after
the Exchange Date (as such period may be extended pursuant to the penultimate
paragraph of Section 4 of this Agreement) and (ii) the date on which all such
Participating Broker-Dealers have sold all such Exchange Securities held by
them. Each such Participating Broker-Dealer agrees to promptly notify the
Company when all such Exchange Securities have been sold by such Participating
Broker-Dealer. The
13
Company and the Guarantors further agree that Participating Broker-Dealers shall
be authorized to deliver such Prospectus during such period in connection with
the resales contemplated by this Section 6.
(c) The Participating Broker-Dealers shall be indemnified by the Company
and the Guarantors with respect to any request that they may make pursuant to
Section 6(b) above.
7. Indemnification and Contribution. (a) The Company and each Guarantor,
jointly and severally, agree to indemnify and hold harmless each Initial
Purchaser and each Holder, their respective affiliates, directors and officers
and each Person, if any, who controls any Initial Purchaser or any Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, legal fees and other expenses reasonably
incurred in connection with any suit, action, proceeding, investigation, any
claim asserted or appeal taken from the foregoing, as such fees and expenses are
incurred), joint or several, that arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or any Prospectus or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except (i) insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to any Initial Purchaser or any Holder
furnished to the Company in writing by such Initial Purchaser or such Holder
expressly for use therein and (ii) with respect to any untrue statement in or
omission from any preliminary prospectus relating to a Registration Statement,
the indemnity agreement contained in the paragraph (a) shall not inure to the
benefit of any Holder to the extent that a Prospectus relating to such
Securities was required to be delivered by such Holder or Participating
Broker-Dealer under the Securities Act and any such loss, claim, damage or
liability results from the fact that (x) a copy of the Prospectus was not sent
or given to such Person at or prior to the written confirmation of the sale of
such Securities to such Person and (y) the untrue statement in or omission from
such preliminary prospectus was corrected in the final Prospectus unless, in
either case, such failure to deliver the Prospectus was a result of
non-compliance by the Company with the provisions of this Agreement. In
connection with any Underwritten Offering permitted by Section 5, the Company
and the Guarantors, jointly and severally, will also indemnify the Underwriters,
if any, selling brokers, dealers and similar securities industry professionals
participating in the distribution, their respective affiliates and each Person
who controls such Persons (within the meaning of the Securities Act and the
Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any Registration
Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, the Guarantors, the Initial Purchasers and the other
selling Holders, their respective affiliates, the directors of the Company and
the Guarantors, each officer of the Company and the Guarantors who signed the
Registration Statement and each Person, if any, who controls the Company, the
Guarantors, any Initial Purchaser and any other selling Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the indemnity set forth in paragraph (a) above, but only with
respect to any losses, claims, damages or liabilities that arise out of, or are
based upon, any untrue statement or omission or alleged
14
untrue statement or omission made in reliance upon and in conformity with any
information relating to such Holder furnished to the Company in writing by such
Holder expressly for use in any Registration Statement or any Prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such Person (the "Indemnified Person") shall
promptly notify the Person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 7 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 7. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 7
that the Indemnifying Person may designate in such proceeding and shall pay the
fees and expenses of such counsel related to such proceeding, as incurred. In
any such proceeding, any Indemnified Person shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded (based on advice of counsel) that there may be
legal defenses available to it that are different from or in addition to those
available to the Indemnifying Person, and such counsel is reasonably acceptable
to the Company; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them, and
such counsel is reasonably acceptable to the Company. It is understood and
agreed that the Indemnifying Person shall not, in connection with any proceeding
or related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all Indemnified Persons, and that all such fees and expenses shall be reimbursed
as they are incurred. Any such separate firm (x) for any Initial Purchaser, its
affiliates, directors and officers and any control Persons of such Initial
Purchaser shall be designated in writing by Citibank Global Markets Inc. and be
reasonably acceptable to the Company, (y) for any Holder, its affiliates,
directors and officers and any control Persons of such Holder shall be
designated in writing by the Majority Holders and be reasonably acceptable to
the Company and (z) in all other cases shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify each Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by this paragraph (and shall be entitled to
such reimbursement pursuant to the provisions hereof), the Indemnifying Person
shall be liable for any settlement of any proceeding
15
effected without its written consent if (i) such settlement is entered into more
than 60 days after receipt by the Indemnifying Person of such request and (ii)
the Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and
indemnification could have been sought hereunder by such Indemnified Person,
unless such settlement (A) includes an unconditional release of such Indemnified
Person, in form and substance reasonably satisfactory to such Indemnified
Person, from all liability on claims that are the subject matter of such
proceeding and (B) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors from the offering of the Securities and the Exchange
Securities, on the one hand, and by the Holders from receiving Securities or
Exchange Securities registered under the Securities Act, on the other hand, or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) but also the relative fault of the Company
and the Guarantors on the one hand and the Holders on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company and the Guarantors on the one hand and the Holders
on the other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company and the Guarantors or by the Holders and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The Company, the Guarantors and the Holders agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in connection with any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall a Holder be
required to contribute any amount in excess of the amount by which the total
price at which the Securities or Exchange Securities sold by such Holder exceeds
the amount of any 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.
16
(f) The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 7
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers or any Holder, their respective affiliates or any Person
controlling any Initial Purchaser or any Holder, or by or on behalf of the
Company or the Guarantors, their respective affiliates or the officers or
directors of or any Person controlling the Company or the Guarantors, (iii)
acceptance of any of the Exchange Securities and (iv) any sale of Registrable
Securities pursuant to a Shelf Registration Statement.
8. General.
(a) No Inconsistent Agreements. The Company and the Guarantors represent,
warrant and agree that (i) the rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of any other outstanding securities issued or guaranteed by the Company
or any Guarantor under any other agreement and (ii) neither the Company nor any
Guarantor has entered into, or on or after the date of this Agreement will enter
into, any agreement that is inconsistent with the rights granted to the Holders
of Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company and the Guarantors have obtained the written consent of
the Majority Holders affected by such amendment, modification, supplement,
waiver or consent; provided that no amendment, modification, supplement, waiver
or consent to any departure from the provisions of Section 7 hereof shall be
effective as against any Holder of Registrable Securities unless consented to in
writing by such Holder, except for any such amendments, modifications,
supplements or waivers that would not adversely effect such Holder in any
respect. Any amendments, modifications, supplements, waivers or consents
pursuant to this Section 8(b) shall be by a writing executed by each of the
parties hereto.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to any Holder, at the most current address of such Holder
maintained by the Trustee under the Indenture (provided that while the
Securities are in book-entry form, notice to the Trustee shall serve as notice
to the Holders); (ii) if to the Company and the Guarantors, initially at the
Company's address set forth in the Purchase Agreement and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 8(c); and (iii) to such other persons at their respective addresses
as provided in the Purchase Agreement and thereafter at such other address,
notice of which is given in accordance with the provisions of this Section 8(c).
All such notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if
17
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt is
acknowledged, if telecopied; and on the next Business Day if timely delivered to
an air courier guaranteeing overnight delivery. Copies of all such notices,
demands or other communications shall be concurrently delivered by the Person
giving the same to the Trustee, at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all the terms of this Agreement, and by taking and holding such
Registrable Securities such Person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement
and such Person shall be entitled to receive the benefits hereof. The Initial
Purchasers (in their capacity as Initial Purchasers) shall have no liability or
obligation to the Company or the Guarantors with respect to any failure by a
Holder to comply with, or any breach by any Holder of, any of the obligations of
such Holder under this Agreement.
(e) Purchases and Sales of Securities. The Company and the Guarantors
shall not, and shall use commercially reasonable efforts to cause their
affiliates (as defined in Rule 405 under the Securities Act) not to, purchase
and then resell or otherwise transfer any Registrable Securities.
(f) Third Party Beneficiaries. Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights of
other Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only, are not a part of this Agreement and shall not limit or
otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
(j) Miscellaneous. This Agreement contains the entire agreement between
the parties relating to the subject matter hereof and supersedes all oral
statements and prior writings with respect thereto. If any term, provision,
covenant or restriction contained in this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable or against public
18
policy, the remainder of the terms, provisions, covenants and restrictions
contained herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. The Company, the Guarantors and the Initial
Purchasers shall endeavor in good faith negotiations to replace the invalid,
void or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, void or unenforceable
provisions.
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
THE GOODYEAR TIRE & RUBBER COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
Business Development
and Treasurer
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written:
CITIBANK GLOBAL MARKETS INC.
For itself and on behalf of the
several Initial Purchasers
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------
Authorized Signatory
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
BELT CONCEPTS OF AMERICA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
COSMOFLEX, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
DAPPER TIRE CO., INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
DIVESTED COMPANIES HOLDING COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
DIVESTED LITCHFIELD PARK PROPERTIES,
INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GOODYEAR CANADA INC.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇
Title: President
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇
Title: Secretary
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GOODYEAR FARMS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GOODYEAR INTERNATIONAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
THE KELLY-SPRINGFIELD TIRE
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
WINGFOOT COMMERCIAL TIRE SYSTEMS LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
WINGFOOT VENTURES EIGHT INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CELERON CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GOODYEAR WESTERN HEMISPHERE
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
WHEEL ASSEMBLIES INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President