REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of February 24, 1998 by and among E-P ACQUISITION, INC., a
Delaware corporation (the "COMPANY"), and SBC WARBURG DILLON READ INC. and ABN
AMRO INCORPORATED (the "INITIAL PURCHASERS"). The execution and delivery of this
Agreement is a condition to the obligations of the Initial Purchasers to
purchase $220,000,000 aggregate principal amount of the Company's 93/8% Senior
Subordinated Notes due 2008 (the "NOTES") under the Notes Purchase Agreement,
dated February 19, 1998 (the "PURCHASE AGREEMENT"), by and among the Company,
Parent and the Initial Purchasers. The Notes will be guaranteed on an unsecured
senior subordinated basis by the Guarantors and will be issued pursuant to the
Notes Indenture (as defined herein).
The Company and the Initial Purchasers hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
"ACT" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission pursuant thereto.
"ACTION" has the meaning set forth in Section 8(c) of this Agreement.
"BROKER-DEALER" means any broker or dealer registered under the
Exchange Act.
"COMMISSION" means the Securities and Exchange Commission.
"CONSUMMATION" of an Offer means the occurrence of (i) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the New Notes to be issued in the Exchange Offer, (ii) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) of this Agreement and (iii) the delivery by
the Company to the Registrar under the Notes Indenture of New Notes in the same
aggregate principal amount as the aggregate principal amount of Old Notes
tendered by the Holders thereof pursuant to the Exchange Offer and not
withdrawn. "CONSUMMATE," when used as a verb, has a correlative meaning.
"EFFECTIVENESS TARGET DATE" has the meaning set forth in Section 5 of
this Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the Commission pursuant thereto.
"EXCHANGE OFFER" means the registration under the Act by the Company of
the New Notes pursuant to a Registration Statement pursuant to which the Company
offers the Holders of outstanding Transfer Restricted Securities the opportunity
to exchange such outstanding Old Notes that are Transfer Restricted Securities
held by such Holders for New Notes in an aggregate principal amount equal to the
aggregate principal amount of the Old Notes that are Transfer Restricted
Securities tendered in such exchange offer by such Holders.
"EXCHANGE OFFER REGISTRATION STATEMENT" means the Registration
Statement relating to the Exchange Offer, including the related Prospectus.
"GUARANTORS" means Parent and the Subsidiary Guarantors (as defined in
the Purchase Agreement).
"HOLDERS" has the meaning set forth in Section 2(b) of this Agreement.
"INDEMNIFIED PERSON" has meaning set forth in Section 8(a) of this
Agreement.
"INITIAL PURCHASERS" means SBC Warburg Dillon Read Inc. and ABN
AMRO Incorporated.
"INTEREST PAYMENT DATE" has the meaning set forth in the Notes
Indenture and the Notes.
"ISSUE DATE" means the date that the Notes are purchased by the Initial
Purchasers pursuant to the Purchase Agreement.
"LOSSES" has the meaning set forth in Section 8(a) of this Agreement.
"NASD" means the National Association of Securities Dealers, Inc.
"NEW NOTES" means the Company's 9 3/8% Senior Subordinated Notes due
2008 to be issued pursuant to the Notes Indenture or an indenture substantially
identical to the Notes Indenture (i) in connection with the Exchange Offer or
(ii) upon the request of any Holder of Old Notes covered by the Shelf
Registration Statement, in exchange for such Old Notes and evidencing the same
debt as the Old Notes, including the guarantees by the Guarantors.
"NOTES" means the Old Notes and the New Notes.
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"NOTES INDENTURE" means the Notes Indenture, dated as of February 24,
1998, by and among the Company and The Bank of New York, as trustee (the
"TRUSTEE"), pursuant to which the Notes are to be issued, as such Notes
Indenture is amended or supplemented from time to time in accordance with its
terms.
"OLD NOTES" means the Company's 9 3/8% Senior Subordinated Notes due
2008 to be issued pursuant to the Notes Indenture on the Issue Date, including
the Guarantees by the Guarantors.
"PARENT" means Eagle-Picher Holdings, Inc., a Delaware corporation, and
its successors.
"PARTICIPATING BROKER-DEALER" has the meaning set forth in Section 6(a)
of this Agreement.
"PERSON" means an individual, corporation, partnership, joint venture,
incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or a government or other agency or political
subdivision thereof or other entity of any kind.
"PROSPECTUS" means the prospectus included in a Registration Statement
at the time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments and
supplements thereto, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference, if any, in
such Prospectus.
"REGISTRATION DEFAULT" has the meaning set forth in Section 5 of this
Agreement.
"REGISTRATION STATEMENT" means any registration statement of the
Company relating to (a) an offering of New Notes pursuant to an Exchange Offer
or (b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement that is filed pursuant to the provisions of
this Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including pre- and post-effective
amendments) and all exhibits and material incorporated by reference or deemed to
be incorporated by reference, if any, therein.
"SHELF FILING DEADLINE" has the meaning set forth in Section 4(a) of
this Agreement.
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"SHELF REGISTRATION STATEMENT" has the meaning set forth in
Section 4(a) of this Agreement.
"SUBSIDIARY" means, with respect to any Person, any other Person of
which a majority of the equity ownership or the voting securities is at the time
owned, directly or indirectly, by such Person or by one or more other
subsidiaries of such Person or a combination thereof.
"TIA" means the Trust Indenture Act of 1939, as amended, and the rules
and regulations promulgated pursuant thereto, all as in effect on the date of
the Notes Indenture.
"TRANSFER RESTRICTED SECURITIES" means each Note until the earliest to
occur of (i) the date on which each such Old Note has been exchanged by a person
other than a Broker-Dealer for a New Note in the Exchange Offer, (ii) following
the exchange by a Broker-Dealer in the Exchange Offer of an Old Note for a New
Note, the date on which such New Note is sold to a purchaser who receives from
such Broker-Dealer on or prior to the date of such sale a copy of the Prospectus
contained in the Exchange Offer Registration Statement, (iii) the date on which
such Note has been effectively registered under the Act and disposed of in
accordance with the Shelf Registration Statement or (iv) the date on which such
Note could be resold pursuant to Rule 144 under the Act.
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING" means a
registration in which securities of the Company are sold to an underwriter for
reoffering to the public pursuant to an effective Registration Statement.
SECTION 2. Securities Subject to this Agreement. (a) Transfer
Restricted Securities. The securities entitled to the benefits of this
Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed
to be a holder of Transfer Restricted Securities (each, a "HOLDER") whenever
such Person beneficially owns Transfer Restricted Securities.
SECTION 3. Registered Exchange Offer. (a) Unless the Exchange Offer
shall not be permitted by applicable federal law or Commission policy, the
Company shall (i) cause to be filed with the Commission on or prior to 45 days
after the Issue Date, an Exchange Offer Registration Statement under the Act
relating to the New Notes and the Exchange Offer and (ii) use its best efforts
to cause such Exchange Offer Registration Statement to be declared effective by
the Commission on or prior to 90 days after the Issue Date. In connection with
the foregoing, the Company shall (A) file all pre-effective amendments to such
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Exchange Offer Registration Statement as may be necessary to cause such Exchange
Offer Registration Statement to become effective, (B) if applicable, file a
post-effective amendment to such Exchange Offer Registration Statement pursuant
to Rule 430A under the Act, (C) cause all necessary filings in connection with
the registration and qualification of the New Notes to be made under the Blue
Sky laws of such jurisdictions as are necessary to permit Consummation of the
Exchange Offer; provided, however, that the Company shall not be obligated to
qualify as a foreign corporation in any jurisdiction in which it is not so
qualified or to take any action which would subject it to general service of
process or taxation in any jurisdiction where it is not so subject and (D) upon
the effectiveness of such Registration Statement, commence the Exchange Offer
and use its best efforts to issue on or prior to 45 days after the date on which
such Exchange Offer Registration Statement is declared effective by the
Commission, New Notes in exchange for all Old Notes tendered prior thereto in
the Exchange Offer. The Exchange Offer shall be on the appropriate form
permitting registration of the New Notes to be offered in exchange for the Old
Notes that are Transfer Restricted Securities and permitting resales of New
Notes held by Broker-Dealers as contemplated by Section 3(c) below. If, after
such Exchange Offer Registration Statement initially is declared effective by
the Commission, the Exchange Offer or the issuance of New Notes under the
Exchange Offer or the resale of New Notes received by Broker-Dealers in the
Exchange Offer as contemplated by Section 3(c) below is interfered with by any
stop order, injunction or other order or requirement of the Commission or any
other governmental agency or court, such Exchange Offer Registration Statement
shall be deemed not to have become effective for purposes of this Agreement
during the period that such stop order, injunction or other similar order or
requirement shall remain in effect.
(b) The Company shall cause the Exchange Offer Registration Statement
to be effective continuously and shall keep the Exchange Offer open for a period
of not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 20 business days. The Company shall cause
the Exchange Offer to comply with all applicable federal and state securities
laws. The Company shall only offer to exchange New Notes for Old Notes in the
Exchange Offer. The Company shall use its best efforts to cause the Exchange
Offer to be Consummated on the earliest practicable date after the Exchange
Offer Registration Statement has become effective, but not less than 20 business
days after such effective date and in no event later than 45 days after such
effective date.
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus included in the Exchange Offer Registration
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Statement that any Broker-Dealer that holds Old Notes that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company or any affiliate of the
Company), may exchange such Old Notes pursuant to the Exchange Offer; provided,
however, that such Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with any resales of the New Notes received
by such Broker-Dealer in the Exchange Offer. Such "Plan of Distribution" section
shall allow the use of such Prospectus by all Persons subject to the prospectus
delivery requirements of the Act, including Participating Broker-Dealers, and
shall also contain all other information with respect to such resales by
Broker-Dealers that the Commission may require to permit such resales pursuant
thereto, but such "Plan of Distribution" shall not name any such Broker-Dealer
or disclose the amount of Notes held by any such Broker-Dealer except to the
extent required by the Commission as a result of a change in policy after the
date of this Agreement.
The Company shall use its best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of Notes acquired by Broker-Dealers for
their own accounts as a result of market-making activities or other trading
activities, and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of 180 days from the date on which the
Exchange Offer Registration Statement is declared effective. The Company shall
provide sufficient copies of the latest version of such Prospectus to
Broker-Dealers promptly upon request at any time during such 180-day period in
order to facilitate such resales.
SECTION 4. Shelf Registration. (a) Shelf Registration. If (i) the
Company is not required to file an Exchange Offer Registration Statement or to
Consummate the Exchange Offer because the Exchange Offer is not permitted by
applicable law or Commission policy or (ii) any Holder of Transfer Restricted
Securities shall notify the Company within 20 days after the commencement of the
Exchange Offer that such Holder (A) is prohibited by applicable law or
Commission policy from participating in the Exchange Offer, or (B) may not
resell the New Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus, and the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such
Holder or (C) is a Broker-Dealer and holds Old Notes (including the Initial
Purchasers that hold Old Notes as part of an unsold allotment from the original
offering of the Notes) acquired directly from the Company or one of its
affiliates,
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then the Company shall (x) cause to be filed a shelf registration statement
pursuant to Rule 415 under the Act, which may be an amendment to the Exchange
Offer Registration Statement (in either event, the "SHELF REGISTRATION
STATEMENT"), on or prior to the earliest to occur of (1) the 45th day after the
date on which the Company determines that it is not required to file the
Exchange Offer Registration Statement or (2) the 45th day after the date on
which the Company receives notice from a Holder of Transfer Restricted
Securities as contemplated by clause (ii) above (such earliest date being the
"SHELF FILING DEADLINE"), which Shelf Registration Statement shall provide for
resales of all Transfer Restricted Securities the Holders of which shall have
provided the information required pursuant to Section 4(c) of this Agreement,
and (y) use its best efforts to cause such Shelf Registration Statement to be
declared effective by the Commission on or before the 45th day after the Shelf
Filing Deadline. The Company shall use its best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and 6(c) of this Agreement to the
extent necessary to ensure that it is available for resales of Notes by the
Holders of Transfer Restricted Securities entitled to the benefit of this
Section 4(a) and to ensure that it conforms to the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a continuous period of two years following the
date on which such Shelf Registration becomes effective under the Act or such
shorter period that will terminate when all the Notes covered by the Shelf
Registration Statement have been sold pursuant to such Shelf Registration
Statement.
(b) Postponement or Suspension of Shelf Registration Statement under
Certain Circumstances. If, notwithstanding its best efforts to cause an Exchange
Offer Registration Statement to be declared effective and to consummate the
Exchange Offer pursuant to Section 3(a) of this Agreement, the Company is
required to file a Shelf Registration Statement pursuant to Section 4(a) hereof,
the Company may postpone or suspend the filing or effectiveness of such Shelf
Registration Statement (or any amendment or supplements thereto) (i) if such
action is required by applicable law or (ii) for up to an aggregate of 30 days
during any consecutive 365-day period, if such action is approved by the Board
of Directors of the Company and is taken by the Company in good faith and for
valid business reasons (not including the avoidance of the Company's obligations
hereunder), including the premature disclosure of material nonpublic information
which, if disclosed at such time, would be materially harmful to the interests
of the Company and its shareholders, so long as the Company promptly thereafter
complies with the requirements of Section 4(a) hereof. This Section 4(b) shall
not affect the Company's obligations to pay Special Interest pursuant to Section
5 of this Agreement.
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(c) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 15 days after receipt of a request therefor, such
information as the Company may reasonably request for use in connection with any
Shelf Registration Statement or Prospectus or preliminary prospectus included in
such Shelf Registration Statement. Each Holder as to which any Shelf
Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed to make the information
previously furnished to the Company by such Holder not materially misleading.
SECTION 5. Special Interest. If (i) the Exchange Offer Registration
Statement or the Shelf Registration Statement is not filed with the Commission
on or prior to the date specified for such filing in Section 3(a) or Section
4(a), respectively, of this Agreement, (ii) the Exchange Offer Registration
Statement or the Shelf Registration Statement has not been declared effective by
the Commission on or prior to the date specified for such effectiveness in
Section 3(a) or Section 4(a), respectively, of this Agreement (the
"EFFECTIVENESS TARGET DATE"), (iii) the Exchange Offer has not been Consummated
within 45 days after the Effectiveness Target Date with respect to the Exchange
Offer Registration Statement or (iv) any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter cease to be
effective or usable in connection with resales of Transfer Restricted Securities
during the periods required by this Agreement (each such event referred to in
clauses (i) through (iv), a "REGISTRATION DEFAULT"), the Company hereby agrees
to pay to each Holder of Transfer Restricted Securities additional interest
("SPECIAL INTEREST") on the principal amount of the Notes (in addition to the
stated interest on the Notes) from and including the date on which any such
Registration Defaults have occurred to but excluding the date on which all such
Registration Defaults have been cured. Special Interest will accrue at a rate of
0.25% per annum during the 90-day period immediately following the occurrence of
any Registration Default and shall increase by 0.25% per annum at the end of
each subsequent 90-day period, but in no event shall such rate exceed 1.5% per
annum. The Company shall have no obligation to pay additional Special Interest
in respect of any subsequent Registration Default so long as the Company
continues to accrue Special Interest with respect to an earlier Registration
Default. All accrued Special Interest shall be paid by the Company on each
Interest Payment Date in accordance with the provisions applicable to the
payment of interest set forth in the Notes Indenture. Following the cure of all
Registration Defaults relating to any particular Transfer Restricted Securities,
the accrual of Special Interest with respect to such Transfer Restricted
Securities will cease.
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All obligations of the Company set forth in the preceding paragraph
that are outstanding with respect to any Transfer Restricted Security at the
time such security ceases to be a Transfer Restricted Security shall survive
until such time as all such obligations with respect to such Transfer Restricted
Security shall have been satisfied in full.
SECTION 6. Registration Procedures. (a) Exchange Offer Registration
Statement. In connection with the Exchange Offer, the Company shall comply with
all of the provisions of Section 6(c) below, shall use its best efforts to
effect such exchange to permit the sale of Transfer Restricted Securities being
sold in accordance with the intended method or methods of distribution thereof,
and shall comply with all of the following provisions:
(i) If, in the reasonable opinion of counsel to the Company, there is
a question as to whether the Exchange Offer is permitted by applicable
federal law or Commission policy, the Company hereby agrees to seek a
no-action letter or other favorable decision from the Commission
allowing the Company to Consummate an Exchange Offer for such Old
Notes. The Company hereby agrees to pursue the issuance of such a
no-action letter or favorable decision to the Commission staff level.
In connection with the foregoing, the Company hereby agrees to take all
such other reasonable actions as are requested by the Commission or
otherwise required in connection with the issuance of such no-action
letter or decision, including without limitation (A) participating in
telephonic conferences with the Commission staff, (B) delivering to the
Commission staff an analysis prepared by counsel to the Company setting
forth the legal bases, if any, upon which such counsel has concluded
that such an Exchange Offer should be permitted and (C) diligently
pursuing a resolution (which need not be favorable) by the Commission
staff of such submission. The Initial Purchasers shall be given prior
notice of any action taken by the Company under this clause (i).
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company,
prior to the Consummation of the Exchange Offer, a written
representation to the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement)
to the effect that (A) it is not an affiliate of the Company within the
meaning of the Act, (B) it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding with any Person to
participate in, a distribution of the New Notes to be issued in the
Exchange Offer and (C) it is acquiring the New Notes in its ordinary
course of business. Holders
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of Transfer Restricted Securities shall use their best efforts to
cooperate in the Company's preparations for the Exchange Offer.
(iii) The Company and the Initial Purchasers acknowledge that the
staff of the Commission has taken the position that any Broker-Dealer
that owns New Notes that were received by such Broker-Dealer for its
own account in the Exchange Offer (a "PARTICIPATING BROKER-DEALER") may
be deemed to be an "underwriter" within the meaning of the Act and must
deliver a prospectus meeting the requirements of the Act in connection
with any resale of such New Notes. Further, the Company and the Initial
Purchasers acknowledge that the Initial Purchasers may not exchange in
the Exchange Offer Old Notes representing unsold allotments resulting
from the original offering of the Old Notes.
The Company and the Initial Purchasers also acknowledge that it is the
Commission staff's current 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 New Notes, without naming the Participating
Broker-Dealers or specifying the amount of New Notes owned by them, such
Prospectus may be delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligations under the Act in connection with resales of New
Notes for their own accounts (other than a resale of an unsold allotment
resulting from the original offering of the Notes), so long as the Prospectus
otherwise meets the requirements of the Act.
(b) Shelf Registration Statement. In the event that a Shelf
Registration Statement is required by this Agreement, the Company shall comply
with all the provisions of Section 6(c) of this Agreement and shall use its best
efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution of such Transfer Restricted Securities and, in
connection therewith, the Company shall, as expeditiously as possible, prepare
and file with the Commission a Shelf Registration Statement relating to the
registration on any appropriate form under the Act, which form shall be
available for the sale of the Transfer Restricted Securities in accordance with
the intended method or methods of distribution of such Transfer Restricted
Securities within the time periods and otherwise in accordance with the
provisions of this Agreement.
(c) General Provisions. In connection with any Registration Statement
and any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
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Statement and the related Prospectus, to the extent that the same are required
to be available to permit resales of Notes by Broker-Dealers), the Company
shall:
(i) use its best efforts to keep such Registration Statement
continuously effective for the applicable time period required
hereunder and provide all requisite financial statements (including, if
required by the Act or any regulation thereunder, financial statements
of the Guarantors) for the period specified in Section 3 or 4 of this
Agreement, as applicable; upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B) not
to be effective and usable for resale of Transfer Restricted Securities
during the period required by this Agreement, the Company shall
promptly notify the Holders to suspend use of the Prospectus, and the
Holders shall suspend use of the Prospectus and the Holders shall not
communicate non-public information to any third party in violation of
the securities laws until the Company has made an appropriate amendment
to such Registration Statement (or caused the Prospectus to be
supplemented by a Prospectus Supplement), in the case of clause (A),
correcting any such misstatement or omission, and, in the case of
either clause (A) or (B), the Company shall use its best efforts to
cause such amendment to be declared effective and such Registration
Statement and the related Prospectus to become usable for their
intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such pre-effective and
post-effective amendments to such Registration Statement as may be
necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or 4 of this Agreement, or
such shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold; cause
the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424
under the Act during the applicable time period required hereunder and
to comply fully with the applicable provisions of Rules 424 and 430A
under the Act in a timely manner; and comply with the provisions of the
Act and the Exchange Act applicable to the Company with respect to the
disposition of all Transfer Restricted Securities covered by such
Registration Statement during such period in accordance with the
intended method or methods of distribution by the sellers of such
securities set forth in such Registration Statement as so amended or in
such Prospectus as so supplemented;
(iii) advise the underwriter(s), if any, the Initial Purchasers, and,
in the case of a Shelf Registration Statement, each of the selling
Holders
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promptly and, if requested by such Persons, confirm such advice in
writing, (A) when the Prospectus or any prospectus supplement or
post-effective amendment has been filed and, with respect to any
Registration Statement or any post-effective amendment thereto, when
the same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information relating to such
Registration Statement or Prospectus, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation
of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement to such Registration Statement
or Prospectus, as the case may be, or any document incorporated by
reference in such Registration Statement or Prospectus untrue, or that
requires the making of any additions to or changes in the Registration
Statement or the Prospectus in order to make the statements in such
Registration Statement or Prospectus not misleading and that, in the
case of the Prospectus, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. If at any
time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws,
the Company shall use its best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) furnish to each of the underwriter(s), if any, the Initial
Purchasers and, in the case of a Shelf Registration Statement, each of
the selling Holders, before filing with the Commission, copies of any
Registration Statement or any Prospectus included in such Registration
Statement or Prospectus or any amendments or supplements to any such
Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such Registration
Statement), which documents will be subject to the review and comment
of such underwriter(s), if any, the Initial Purchasers, and such
Holders for a period of at least five business days, and the Company
will not file any such Registration Statement or Prospectus or any
amendment or
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supplement to any such Registration Statement or Prospectus, as the
case may be (including all such documents incorporated by reference),
to which any underwriter, Initial Purchaser or selling Holder shall
reasonably object within five business days after the receipt of such
Registration Statement or Prospectus;
(v) in connection with any Shelf Registration Statement and, in the
case of Participating Broker-Dealers, any Exchange Offer Registration
Statement, promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
(A) provide copies of such document to the selling Holders (including
Participating Broker-Dealers, if any) and to the underwriter(s), if
any, (B) make the Company's representatives reasonably available for
discussion of such document and other customary due diligence matters;
provided that such discussion and due diligence shall be coordinated on
behalf of the selling Holders by one counsel designated by and on
behalf of such selling Holders and (C) include such information in such
document prior to the filing of such document as such selling Holders
or underwriter(s), if any, may reasonably request;
(vi) make available at reasonable times for inspection by the selling
Holders, any underwriter participating in any disposition pursuant to
such Registration Statement and any attorney or accountant retained by
such selling Holders or any of the underwriter(s), if any, at the
offices where normally kept, during reasonable business hours, all
relevant financial and other records, pertinent corporate documents and
properties of the Company and the Guarantors and cause the Company's
and the Guarantors' officers, directors and employees to supply all
information reasonably requested by any such Holder, underwriter,
attorney or accountant in connection with such Registration Statement
subsequent to the filing thereof and prior to its effectiveness;
provided, however, that any information that is designated in writing
by the Company, in good faith, as confidential at the time of delivery
of such information shall be kept confidential by such selling Holders,
underwriters, attorney or accountant, unless such disclosure is made in
connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying, obligation of confidentiality.
Each selling Holder, underwriter, attorney or accountant requesting
disclosure will agree that it will, upon learning that disclosure of
such information is sought in connection with a court proceeding, give
notice to the Company and allow it at its own expense to undertake
appropriate action to prevent disclosure of the information deemed
confidential;
13
(vii) if requested by any selling Holders or the underwriter(s), if
any, promptly include in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment, if necessary,
such information as such selling Holders and underwriter(s), if any,
may reasonably request to have included therein, including, without
limitation, information relating to the "Plan of Distribution" of the
Transfer Restricted Securities, information with respect to the
principal amount of Transfer Restricted Securities being sold to such
underwriter(s), the purchase price being paid for Transfer Restricted
Securities and any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make all
required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the
matters to be included in such Prospectus supplement or post-effective
amendment; provided, however, that the Company shall not be required to
take any action pursuant to this Section 6(c)(vii) that would, in the
opinion of counsel for the Company, violate applicable law;
(viii) furnish to each underwriter, if any, the Initial Purchasers and
selling Holders, without charge, at least one conformed copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference that are expressly requested by such persons);
(ix) deliver to each selling Holder, each of the underwriter(s), if
any, and the Initial Purchasers, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons may reasonably request; the Company
hereby consents to the use of the Prospectus and any amendment or
supplement to the Prospectus by each of the selling Holders and each of
the underwriter(s), if any, in connection with the offering and the
sale of the Transfer Restricted Securities in accordance with the terms
thereof and with U.S. federal securities laws and Blue Sky laws covered
by the Prospectus or any amendment or supplement thereto;
(x) enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in underwritten offerings of
securities of this type) and take all such other reasonable actions in
connection therewith in order to expedite or facilitate the disposition
of the Transfer Restricted Securities pursuant to any Registration
Statement contemplated by this Agreement, all as may be reasonably
requested by any Holder of Transfer Restricted Securities or
14
the underwriter(s), if any, in connection with any sale or resale of
Transfer Restricted Securities pursuant to any Registration Statement
contemplated by this Agreement; and whether or not an underwriting
agreement is entered into and whether or not the registration is an
Underwritten Registration, the Company shall
(A) make such representations and warranties to the
Holders of such Transfer Restricted Securities and the
underwriters, if any, with respect to the business of the
Company and its Subsidiaries (including with respect to
businesses or assets acquired or to be acquired by any of
them), and the Shelf 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, and confirm the same if and when
customarily requested;
(B) use its reasonable best efforts to 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 underwriters, if any, and special counsel
to the Holders of the Transfer Restricted Securities being
sold), addressed to each selling Holder of Transfer Restricted
Securities and each of the underwriters, if any, covering the
matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be
reasonably requested by such underwriters, if any, and special
counsel to Holders of Transfer Restricted Securities;
(C) use its reasonable best efforts to obtain customary
"cold comfort" letters and updates thereof 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 or any such subsidiary for
which financial statements and financial data is, or is
required to be, included in the Registration Statement),
addressed to each selling Holder of Transfer Restricted
Securities and each of the underwriters, if any, such letters
to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection
with underwritten offerings;
(D) if an underwriting agreement is entered into, the
same shall contain indemnification provisions and procedures
no less
15
favorable to the selling Holders and the underwriters, if any,
than those set forth in Section 8 hereof (or such other
provisions and procedures acceptable to Holders of a majority
in aggregate principal amount of Transfer Restricted
Securities covered by such Shelf Registration Statement and
the underwriters, if any); and
(E) deliver such documents and certificates as may be
reasonably requested by the Holders of a majority in aggregate
principal amount of the Transfer Restricted Securities being
sold and the underwriters, if any, to evidence the continued
validity of the representations and warranties made pursuant
to clause (A) above and to evidence compliance with any
customary conditions contained in the underwriting agreement
or other agreement entered into by the Company.
If at any time the representations and warranties of the Company
contemplated in clause (x)(A) above cease to be true and correct, the Company
shall so advise the Initial Purchasers and the underwriter(s), if any, and each
selling Holder promptly and, if requested by any of them, shall confirm such
advice in writing;
(xi) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders, the underwriter(s), if any, and
their respective counsel in connection with the registration and
qualification (or exemption from such registration or qualification) of
the Transfer Restricted Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the selling
Holders and underwriter(s), if any, may reasonably request and do any
and all other reasonable acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Transfer Restricted
Securities covered by the Registration Statement; provided, however,
that the Company shall not be required to register or qualify as a
foreign corporation where it is not now so qualified or to take any
action that would subject it to the service of process or to taxation,
other than as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject;
(xii) if a Shelf Registration is filed pursuant to Section 4,
cooperate with the selling Holders of Registrable Securities and the
managing Underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to
be sold, which certificates shall not bear any restrictive legends and
shall be in a form eligible for deposit with The Depository Trust
Company; and enable such Transfer Restricted Securities to be in such
denominations and
16
registered in such names as the managing Underwriters, if any, or
Holders may reasonably request;
(xiii) in connection with any sale or transfer of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and enable such
Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders or the underwriter(s), if any,
may request at least two business days prior to any sale of Transfer
Restricted Securities made by such underwriter(s);
(xiv) use its best efforts to cause the Transfer Restricted Securities
covered by the Registration Statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers of such Transfer Restricted Securities
or the underwriter(s), if any, to Consummate the disposition of such
Transfer Restricted Securities, subject to the proviso contained in
clause (xi) above;
(xv) if any fact or event contemplated by Section 6(c)(iii)(D) of this
Agreement shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated in such Registration Statement
or Prospectus by reference or file any other required document so that,
as thereafter delivered to the purchasers of Transfer Restricted
Securities, the Registration Statement will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading and the
Prospectus will not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading;
(xvi) provide a CUSIP or CINS number for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement and provide the Trustee under the Notes Indenture with
certificates for the Transfer Restricted Securities that are in a form
eligible for deposit with The Depository Trust Company;
(xvii) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by
17
any "qualified independent underwriter" that is required to be
retained in accordance with the rules and regulations of the NASD;
(xviii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission in regards to any Registration
Statement, and make generally available to its securityholders, as soon
as practicable, a consolidated earnings statement of the Company and
its subsidiaries meeting the requirements of Rule 158 (which need not
be audited) for the twelve-month period (A) commencing at the end of
any fiscal quarter in which Transfer Restricted Securities are sold to
underwriters in a firm commitment or reasonable best efforts
Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration
Statement; and
(xix) cause the Notes Indenture or such other indenture for the New
Notes to be qualified under the TIA not later than the effective date
of the first Registration Statement required by this Agreement, and, if
applicable, in connection therewith, cooperate with the Trustee and the
Holders to effect such changes to the Notes Indenture, if any, as may
be required for such Notes Indenture to be so qualified in accordance
with the terms of the TIA; and execute, and use its best efforts to
cause the Trustee to execute, all customary documents that may be
required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Notes Indenture
to be so qualified in a timely manner.
In the case of a Shelf Registration Statement, the Company may require
each Holder to furnish to the Company such information as the Company may
reasonably request, and the Company may exclude from such registration the New
Notes of any Holder who fails to furnish such information within a reasonable
period of time after receiving such request. Each Holder as to which any Shelf
Registration is being effected shall furnish promptly to the Company, upon its
request, all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially
misleading. Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) of this Agreement, such Holder
will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the applicable Registration Statement until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xv) of this Agreement, or until it is advised in writing (the "ADVICE") by
the Company that the use of the Prospectus may be resumed, and has received
copies of any
18
additional or supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Company, each Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such notice. In
the event that the Company shall give any such notice, the time period regarding
the effectiveness of such Registration Statement set forth in Section 3 or 4 of
this Agreement, as applicable, shall be extended by the number of days during
the period from and including the date of the giving of such notice pursuant to
Section 6(c)(iii)(D) of this Agreement to and including the date when each
selling Holder covered by such Registration Statement shall have received the
copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xv) of this Agreement or, if no such supplemented or amended Prospectus is
required, when it shall have received the Advice.
SECTION 7. Registration Expenses. (a) All fees and expenses incident to
the Company's performance of or compliance with this Agreement will be borne by
the Company regardless of whether a Registration Statement becomes effective,
including, without limitation: (i) all registration and filing fees and expenses
(including required filings made by any Initial Purchaser or Holder with the
NASD (and, if applicable, the reasonable fees and expenses of any "qualified
independent underwriter" and its counsel that may be required by the rules and
regulations of the NASD)); (ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws; (iii) all expenses of printing
(including printing certificates for the New Notes to be issued in the Exchange
Offer and printing of Prospectuses); (iv) all fees and disbursements of counsel
for the Company and, subject to Section 7(b) below, all reasonable fees and
disbursements of counsel for the Holders of Transfer Restricted Securities; (v)
all fees and disbursements of independent certified public accountants of the
Company (including the expenses of any comfort letters required by or incident
to such performance); and (vi) all fees and expenses of the Trustee and any
exchange agent and the fees and disbursements of its counsel.
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
Notwithstanding the foregoing or anything in this Agreement to the
contrary, each Holder of Transfer Restricted Securities shall pay all
underwriting discounts and commissions of any underwriters with respect to any
Notes sold by or on behalf of it.
19
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ or such other counsel as may be chosen by the Holders of a
majority in principal amount of the Transfer Restricted Securities for whose
benefit such Registration Statement is being prepared.
SECTION 8. Indemnification. (a) The Company agrees to indemnify and
hold harmless (i) the Initial Purchasers (in their capacity as such), each
Holder of Transfer Restricted Securities and each Participating Broker-Dealer,
(ii) each person, if any, who controls any of the foregoing within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act (any of the
persons referred to in this clause (ii) being hereinafter referred to as a
"controlling person") and (iii) the respective agents, employees, officers and
directors of the Initial Purchasers (in their capacity as such) and the agents,
employees, officers and directors of any Holder or any controlling person (any
person referred to in clause (i), (ii) or (iii) may hereinafter be referred to
as an "INDEMNIFIED PERSON") from and against any and all losses, liabilities,
claims, damages and expenses whatsoever (including, but not limited to,
reasonable attorneys' fees and any and all reasonable expenses whatsoever
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, and any and all reasonable
amounts paid in settlement of any claim or litigation) (collectively, "LOSSES")
to which they or any of them may become subject under the Act, the Exchange Act
or otherwise, insofar as such Losses (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, preliminary prospectus or
Prospectus, or in any supplement thereto or amendment thereof, or arise out of
or are based upon the 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 circumstances under which they were made, not misleading;
provided, however, that the Company will not be liable in any such case to the
extent, but only to the extent, that any such Loss arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Indemnified Person
relating to such Indemnified Person expressly for use therein; and, provided
further, however, that the indemnity agreement contained in this subsection (a)
with respect to any preliminary prospectus shall not inure to the benefit of the
20
Indemnified Persons or their agents, employees, officers and directors for any
Loss if the Prospectus corrected any such alleged untrue statement or omission
and if such Indemnified Persons failed to send or give a copy of the Prospectus
at or prior to the written confirmation of a sale of the Notes to the person
alleging such Loss. This indemnity agreement will be in addition to any
liability that the Company may otherwise have, including, but not limited to,
liability under this Agreement.
(b) In connection with any Registration Statement pursuant to which a
Holder of Transfer Restricted Securities offers or sells Transfer Restricted
Securities, such Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, its respective agents, employees, officers and directors
and any person controlling the Company within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act, and the agents, employees, officers
and directors of such controlling person to the same extent as the foregoing
indemnity from the Company to each Indemnified Person but only with respect to,
and to the extent that, information relating to such Holder furnished in writing
by or on behalf of such Holder expressly for use in such Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, suit or proceeding (collectively,
an "ACTION"), such indemnified party shall, if a claim in respect thereof is to
be made against the indemnifying party under such subsection, notify each party
against whom indemnification is to be sought in writing of the commencement of
such Action (but the failure so to notify an indemnifying party shall not
relieve such indemnifying party from any liability that it may have under this
Section 8 except to the extent that it has been prejudiced in any material
respect by such failure or from any liability which it may otherwise have). In
case any such Action is brought against any indemnified party, and it notifies
an indemnifying party of the commencement of such Action, the indemnifying party
will be entitled to participate in such Action, and to the extent it may elect
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense of such
Action with counsel satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ its
or their own counsel in any such Action, but the fees and expenses of such
counsel shall be at the expense of such indemnified party or parties unless (i)
the employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such Action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such Action within a reasonable time after notice of commencement of
the Action, or (iii) the named parties to such Action (including any impleaded
parties) include such indemnified party and the indemnifying parties (or such
indemnifying parties shall have
21
assumed the defense of such action), and such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
that are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such Action on behalf of the indemnified party or
parties), in any of which events such fees and expenses of counsel shall be
borne by the indemnifying parties. In no event shall the indemnifying party be
liable for the fees and expenses of more than one counsel (together with
appropriate local counsel) at any time for all indemnified parties in connection
with any one Action or separate but substantially similar or related Actions
arising out of the same general allegations or circumstances. Anything in this
subsection to the contrary notwithstanding, an indemnifying party shall not be
liable for any settlement of any claim or Action effected without its written
consent; provided, however, that such consent was not unreasonably withheld.
(d) In order to provide for contribution in circumstances in which the
indemnification provided for in paragraphs (a) and (b) of this Section 8 is for
any reason held to be unavailable from the indemnifying party, or is
insufficient to hold harmless a party indemnified under this Section 8, the
Company and the Indemnified Persons shall contribute to the aggregate Losses of
the nature contemplated by such indemnification provision (but after deducting
in the case of Losses suffered by the indemnifying party, any contribution
received by the indemnifying party from persons other than the Indemnified
Person who may also be liable for contribution, including persons who control
the Indemnified Person within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act) to which the Company and the Indemnified Persons may
be subject, in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Indemnified Persons,
on the other hand, from the offering of the Notes or, if such allocation is not
permitted by applicable law or indemnification is not available as a result of
the indemnifying party not having received notice as provided in paragraph (c)
of this Section 8 and having been prejudiced in any material respect by the
absence of such notice, in such proportion as is appropriate to reflect not only
the relative benefits referred to above but also the relative fault of the
Company, on the one hand, and the Indemnified Persons, on the other hand, in
connection with the statements or omissions that resulted in such Losses, as
well as any other relevant equitable considerations. The relative benefits
received by the Company shall be deemed to be in the same proportion as the
total proceeds from the offering of Old Notes (net of discounts but before
deducting expenses) received by the Company as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company, on the one
hand, and the Indemnified Persons, on the other hand, 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
22
material fact relates to information supplied by the Company or the Indemnified
Persons and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission or alleged
statement or omission.
(e) The Company and the Initial Purchasers agree that it would not be
just and equitable if contribution pursuant to paragraph (d) of this Section 8
were determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to above.
Notwithstanding the provisions of paragraph (d) of this Section 8, (i) in no
case shall an Indemnified Persons be required to contribute any amount in excess
of the amount by which the total received by such Indemnified Person with
respect to its sale of its Transfer Restricted Securities or New Notes, as the
case may be, exceeds the amount of any damages that such Indemnified Person has
otherwise been required to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission and (ii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of paragraphs (d) and (e) of this
Section 8, each person, if any, who controls an Indemnified Person within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act shall have
the same rights to contribution as such Indemnified Person, and each person, if
any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act shall have the same rights to contribution as
the Company, subject in each case to clauses (i) and (ii) of this Section 8(e).
Any party entitled to contribution will, promptly after receipt of notice of
commencement of any Action against such party in respect of which a claim for
contribution may be made against another party or parties under paragraph 8(d)
or (e) of this Section 8, notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
obligation it or they may have under paragraph (d) or (e) of this Section 8 or
otherwise; except to the extent that it has been prejudiced in any material
respect by such failure; provided, however, that no additional notice shall be
required with respect to any action for which notice has been given under
Section 6 for purposes of indemnification. Anything in this section to the
contrary notwithstanding, no party shall be liable for contribution with respect
to any Action or claim settled without its written consent; provided, however,
that such written consent shall not be unreasonably withheld.
SECTION 9. Rule 144A. The Company agrees with each Holder, for so long
as any Transfer Restricted Securities remain outstanding, to make available to
any Holder or beneficial owner of Transfer Restricted Securities and any
23
prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner and to Broker-Dealers, upon their request, the
information required by Rule 144A(d)(4) under the Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A.
SECTION 10. Participation in Underwritten Registrations. No Holder may
participate in any Underwritten Registration under this Agreement unless such
Holder (a) agrees to sell such Holder's Transfer Restricted Securities on the
basis provided in customary underwriting arrangements approved by the Persons
entitled under this Agreement to approve such arrangements and (b) completes and
executes all reasonable questionnaires, powers of attorneys, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
SECTION 11. Selection of Underwriters. The Holders of Transfer
Restricted Securities covered by the Shelf Registration Statement who desire to
do so may sell such Transfer Restricted Securities in an Underwritten Offering.
In any such Underwritten Offering, the investment banker or investment bankers
and manager or managers that will administer the offering will be selected by
the Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities included in such offering; provided that such investment
bankers and managers must be reasonably satisfactory to the Company.
SECTION 12. Miscellaneous. (a) Remedies. Each Holder, in addition to
being entitled to exercise all rights provided in this Agreement, in the Notes
Indenture, the Purchase Agreement or granted by law, including recovery of
liquidated or other damages, will be entitled to specific performance of its
rights under this Agreement. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by them of
the provisions of this Agreement and hereby agree to waive the defense in any
Action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not on or after the
date of this Agreement enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions of this Agreement. The Company has not
previously entered into any agreement granting any registration rights with
respect to its respective securities to any Person, except as disclosed in the
Offering Memorandum dated February 20, 1998 relating to the Old Notes and in the
Offering Memorandum dated February 20, 1998 relating to the offering of
preferred stock by Parent. The rights granted to the Holders under this
Agreement do not in any way conflict with and are not inconsistent with the
rights granted to
24
the holders of the Company's securities under any agreement in effect on the
date of this Agreement.
(c) Adjustments Affecting the Notes. Without the written consent of
the Holders of a majority in aggregate principal amount of outstanding Transfer
Restricted Securities, the Company will not take any action, or permit any
change to occur, with respect to the Notes that would materially and adversely
affect the ability of the Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions of this Agreement may not be given unless (i) in the case of
Section 5 hereof and this Section 12(d)(i), the Company has obtained the written
consent of each affected Holder of outstanding Transfer Restricted Securities
and (ii) in the case of all other provisions hereof, the Company has obtained
the written consent of Holders of a majority of the outstanding principal amount
of Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions of this Agreement that relates
exclusively to the rights of Holders whose securities are being sold or tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being sold or tendered
pursuant to such Exchange Offer may be given by the Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities subject to such
Exchange Offer.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivering, first-class
mail (registered or certified, return receipt requested), telex, telecopier or
air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Notes Indenture, with a copy to the Registrar under
the Notes Indenture; and
(ii) if to the Company, at:
E-P Acquisition, Inc.
c/o Eagle-Picher Industries, Inc.
The ▇▇▇▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
25
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇. Esq.
All such notices and communications shall be deemed to have been duly
given: (i) at the time delivered by hand, if personally delivered; (ii) five
business days after being deposited in the mail, postage prepaid, if mailed;
(iii) when answered back, if telexed; (iv) when receipt acknowledged by
telecopier machine, if telecopied; and (v) 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 Notes Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties to this Agreement in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning of this
Agreement.
(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 THE
CONFLICT OF LAWS RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained in this Agreement, or the application of any such provision in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained in this Agreement shall not be affected or
impaired thereby.
26
(k) Entire Agreement. This Agreement together with the other Operative
Documents (as defined in the Purchase Agreement) is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties to this Agreement in
respect of the subject matter contained in this Agreement. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to in this Agreement with respect to the registration rights granted
by the Company with respect to the Transfer Restricted Securities. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
27
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
E-P ACQUISITION, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and President
Accepted and agreed as of
the date first above written:
SBC WARBURG DILLON READ INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
ABN AMRO INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director