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EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of the 21st day of November, 1995, by and among Interface, Inc., a
Georgia corporation (the "Company"), Bentley ▇▇▇▇▇, Inc., Guilford (Delaware),
Inc., Guilford of Maine, Inc., Interface Asia-Pacific, Inc., Interface Europe,
Inc., Interface Flooring Systems, Inc., Interface Research Corporation, Pandel,
Inc., Prince Street Technologies, Ltd., Rockland React-Rite, Inc.
(collectively, the "Guarantors") and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, Inc., Wheat, First
Securities, Inc. and First Chicago Capital Markets, Inc. (collectively, the
"Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated November
16, 1995, among the Company, the Guarantors, and the Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Purchasers of 9
1/2% Senior Subordinated Notes due 2005 (the "Senior Subordinated Notes"). The
Senior Subordinated Notes are to be issued by the Company pursuant to the
provisions of an Indenture dated as of November 15, 1995 (as amended,
supplemented or otherwise modified from time to time, the "Indenture") between
the Company and First Union National Bank of Georgia, as trustee (the
"Trustee").
In order to induce the Purchasers to enter into the Purchase Agreement,
the Company has agreed to provide to the Purchasers and their direct and
indirect transferees the registration rights with respect to the Senior
Subordinated Notes set forth in this Agreement. The execution 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 capitalized defined terms shall
have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from
time to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"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 Date" shall have the meaning set forth in Section
2(a)(ii).
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"Exchange Notes" shall mean securities issued by the Company under
the Indenture containing terms identical to the Senior Subordinated Notes
(except that (i) interest thereon shall accrue from the last date on which
interest was paid on the Senior Subordinated Notes or, if no such interest
has been paid, from November 21, 1995 and (ii) the Exchange Notes will not
provide for an increase in the rate of interest and will not contain terms
with respect to transfer restrictions) and to be offered to Holders of
Senior Subordinated Notes in exchange for Senior Subordinated Notes
pursuant to the Exchange Offer.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Notes for Registrable Notes pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
1933 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 all material incorporated by reference therein.
"Guarantees" shall mean the guarantee of the Senior Subordinated
Notes by each Guarantor.
"Holder" shall mean the Purchasers, for so long as they own any
Registrable Notes, and each of their successors, assigns and direct and
indirect transferees who become registered owners of Registrable Notes
under the Indenture; provided that for purposes of Sections 4 and 5 of this
Agreement, the term "Holder" shall include Participating Broker-Dealers (as
defined in Section 4(a)).
"Indenture" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Notes; provided that,
for purposes of Section 6(b), whenever the consent or approval of Holders
of a specified percentage of Registrable Notes is required hereunder,
Registrable Notes held by the Company or any of its affiliates (as such
term is defined in Rule 405 under the ▇▇▇▇ ▇▇▇) (other than the Purchasers
or subsequent holders of Registrable Notes if such subsequent holders are
deemed to be such affiliates solely by reason of their holding of such
Registrable Notes) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage or amount.
"Offer Termination Date" shall have the meaning set forth in Section
2(a)(iv).
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"Participating Broker-Dealer" shall have the meaning set forth in
Section 4(a) hereof.
"Person" shall mean an individual, partnership, 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 or offering memorandum, and
any such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the terms of
the offering of any portion of the Registrable Notes covered by a Shelf
Registration Statement, and by all other amendments and supplements to such
prospectus, and in each case including all material incorporated by
reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Purchasers" shall have the meaning set forth in the preamble.
"Registrable Notes" shall mean the Senior Subordinated Notes;
provided, however, that the Senior Subordinated Notes shall cease to be
Registrable Notes (i) when a Registration Statement with respect to such
Senior Subordinated Notes shall have been declared effective under the 1933
Act and such Senior Subordinated Notes shall have been disposed of or
exchanged pursuant to such Registration Statement, (ii) upon the expiration
of the Exchange Offer period with respect to any Exchange Offer
Registration Statement if all Registrable Notes validly tendered in
connection with such Exchange Offer shall have been exchanged for Exchange
Notes, (iii) when such Senior Subordinated Notes have been sold or are
eligible for sale to the public pursuant to Rule 144(k) (or any similar
provision then in force, but not Rule 144A) under the 1933 Act or (iv) when
such Senior Subordinated Notes shall have ceased to be outstanding;
provided, however, that if an opinion of counsel is delivered to the
Company as provided in clause (iii) of Section 2(b), then Senior
Subordinated Notes held by the Purchasers shall not cease to be Registrable
Notes solely by reason of clause (ii) above.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or
blue sky laws, (iii) all expenses of any Person in preparing or assisting
in preparing, word processing, printing and distributing, at the request of
the Company, any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales
agreements and other documents relating to the performance of and
compliance with this Agreement, (iv)
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all fees and disbursements relating to the qualification of the Indenture
under applicable securities laws, (v) the fees and disbursements of the
Trustee and its counsel, (vi) the fees and disbursements of counsel for the
Company and, in the case of a Shelf Registration Statement, the fees and
disbursements of one counsel for the Holders incurred on or before the
initial effectiveness of the Shelf Registration Statement, which counsel
shall be counsel for the Purchasers or other counsel selected by the
Company and not objected to by the Majority Holders ("counsel for the
Holders") and (vii) the fees and disbursements of the independent public
accountants of the Company, including the expenses of any special audits or
"cold comfort" letters required by or incident to such performance and
compliance, but excluding underwriting discounts, if any, and commissions
and transfer taxes, if any, relating to the sale or disposition of
Registrable Notes by a Holder.
"Registration Statement" shall mean any registration statement of
the Company that covers any of the Exchange Notes, Registrable Notes or
Guarantees 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 all material incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of this
Agreement which covers all of the Registrable Notes and Guarantees on an
appropriate form under Rule 415 under the 1933 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 all
material incorporated by reference therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"Trustee" shall have the meaning set forth in the preamble.
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2. Registration under the 1933 Act.
(a) To the extent not prohibited by any applicable law or applicable
interpretation of the Staff of the SEC, the Company and the Guarantors shall
use their best efforts to cause to be filed an Exchange Offer Registration
Statement covering the offer by the Company to the Holders to exchange all of
the Registrable Notes for Exchange Notes, to have such Registration Statement
remain effective until the closing of the Exchange Offer and to consummate the
Exchange Offer on or prior to the date that is 105 days after the Closing Date.
The Company and the Guarantors shall commence the Exchange Offer promptly
after the Exchange Offer Registration Statement has been declared effective by
the SEC and use their best efforts to have the Exchange Offer consummated not
later than 30 days after such effective date. For purposes hereof,
"consummate" shall mean that the Exchange Offer Registration Statement shall
have been declared effective, subject to Section 2(b), the period of the
Exchange Offer provided in accordance with clause (ii) below shall have expired
and all Registrable Notes validly tendered in connection with such Exchange
Offer shall have been exchanged for Exchange Notes. The Company and the
Guarantors shall commence the Exchange Offer by mailing the related exchange
offer Prospectus and accompanying documents to each Holder stating, in addition
to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Registration Rights Agreement and that all Registrable Notes validly
tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a
period of at least 25 days from the date such notice is mailed) (each
such date being an "Exchange Date");
(iii) that any Registrable Note not tendered will remain
outstanding and continue to accrue interest, but will not retain any
rights under this Agreement;
(iv) that Holders electing to have a Registrable Note
exchanged pursuant to the Exchange Offer will be required to
surrender such Registrable Note, together with the enclosed letters
of transmittal, to the institution and at the address specified in
the notice prior to the close of business on the last Exchange Date
(the "Offer Termination Date"); and
(v) that Holders will be entitled to withdraw their election,
not later than the close of business on the Offer Termination Date,
by sending to the institution and at the address specified in the
notice a telegram, telex, facsimile transmission or letter setting
forth the name of such Holder, the principal amount of Registrable
Notes delivered for exchange and a statement that such Holder is
withdrawing his election to have such Registrable Notes exchanged.
As soon as practicable after the Offer Termination Date, the
Company shall:
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(A) accept for exchange Registrable Notes or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer; and
(B) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Notes or portions thereof so accepted for
exchange by the Company and issue, and cause the Trustee to promptly
authenticate and mail to each Holder, an Exchange Note equal in aggregate
principal amount to the aggregate principal amount of the Registrable
Notes surrendered by such Holder.
The Company and the Guarantors shall use their best efforts to complete the
Exchange Offer as provided above and shall comply with the applicable
requirements of the 1933 Act, the 1934 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 applicable law or any applicable interpretation of the Staff of the
SEC. The Company shall inform the Purchasers of the names and addresses of the
Holders to whom the Exchange Offer is made, and the Purchasers shall have the
right, subject to applicable law, to contact such Holders and otherwise
facilitate the tender of Registrable Notes in the Exchange Offer.
(b) In the event that (i) the Company determines that the Exchange
Offer Registration provided for in Section 2(a) above is not available or may
not be consummated as soon as practicable after the Offer Termination Date
because it would violate applicable law or the applicable interpretations of the
Staff of the SEC, (ii) the Exchange Offer is not for any other reason
consummated within 105 days after the Closing Date or (iii) in the opinion of
counsel for the Purchasers, which shall be given reasonably promptly, a
Registration Statement must be filed and a Prospectus must be delivered by the
Purchasers in connection with any offering or sale of Registrable Notes, the
Company and the Guarantors shall use their best efforts to cause to be filed as
soon as practicable after such determination, date or notice of such opinion of
counsel is given to the Company, as the case may be, a Shelf Registration
Statement providing for the sale by the Holders of all of the Registrable Notes
and to have such Shelf Registration Statement declared effective by the SEC. In
the event the Company and the Guarantors are required to file a Shelf
Registration Statement solely as a result of the matters referred to in clause
(iii) of the preceding sentence, the Company and the Guarantors shall file and
have declared effective by the SEC both an Exchange Offer Registration Statement
pursuant to Section 2(a) with respect to all Registrable Notes 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 Notes held by the Purchasers after completion of the Exchange Offer.
The Company and the Guarantors agree to use their best efforts to keep the Shelf
Registration Statement continuously effective until the third anniversary of the
Closing Date or such shorter period that will terminate when all of the
Registrable Notes covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement. The Company and the Guarantors
further agree to supplement or amend the Shelf Registration Statement if
required by the rules, regulations or instructions applicable to the
registration form used by the Company and the Guarantors for such Shelf
Registration Statement or by the 1933 Act or by any other
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rules and regulations thereunder for shelf registration or if reasonably
requested by a Holder with respect to information relating to such Holder, and
to use their best efforts to cause any such amendment to become effective and
such Shelf Registration Statement to become usable as soon as thereafter
practicable. The Company agrees to furnish to the Holders of Registrable Notes
copies of any such supplement or amendment promptly after its being used or
filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration
Expenses in connection with the registration pursuant to Section 2(a) or Section
2(b). Each Holder shall pay all underwriting discounts, if any, and commissions
and transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC; provided, however, that, if, after it has been declared effective, the
offering of Registrable Notes pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration Statement
will be deemed not to have become effective during the period of such
interference until the offering of Registrable Notes pursuant to such
Registration Statement may legally resume. As provided for in the Indenture,
in the event the Exchange Offer is not consummated and the Shelf Registration
Statement is not declared effective on or prior to ▇▇▇▇▇ ▇, ▇▇▇▇, ▇▇▇▇▇▇▇
Interest (in addition to the interest otherwise due on the Notes after such
date) shall be accrued on the Notes as follows:
(i) (A) if an Exchange Offer Registration Statement or, in the
event that due to current interpretations by the SEC the Company is not
permitted to effect the Exchange Offer, a Shelf Registration Statement is
not filed within 30 days following the Closing Date or (B) in the event
that within the prescribed time period, any holder of Registrable Notes
shall notify the Company that such holder (x) is prohibited by applicable
law or SEC policy from participating in the Exchange Offer, (y) may not
resell Exchange Notes acquired by it in the Exchange Offer to the public
without delivering a prospectus and that the prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for
such resales by such holder or (z) is a broker-dealer and holds
Registrable Notes acquired directly from the Company or an "affiliate" of
the Company, a Shelf Registration Statement is not filed within 30 days
after expiration of the prescribed time period, then commencing on the 31st
day after the Closing Date or the expiration of the prescribed time period,
as the case may be, Penalty Interest shall be accrued on the Notes over and
above the accrued interest at a rate of .50% per annum for the first 90
days immediately following the 31st day after the Closing Date or the
expiration of the prescribed time period, as the case may be, such Penalty
Interest rate increasing by an additional .25% per annum at the beginning
of each subsequent 90-day period;
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(ii) if an Exchange Offer Registration Statement or a Shelf
Registration Statement is filed pursuant to Section 2(d)(i) hereof and is
not declared effective within 75 days following the Closing Date or the
expiration of the prescribed time period, as the case may be, then
commencing on the 76th day after the Closing Date or the expiration of the
prescribed time period, as the case may be, Penalty Interest shall be
accrued on the Registrable Notes over and above the accrued interest at a
rate of .50% per annum for the first 90 days immediately following the 76th
day after the Closing Date or the expiration of the prescribed time period,
as the case may be, such Penalty Interest rate increased by an additional
.25% per annum at the beginning of each subsequent 90-day period; and
(iii) if either (A) the Company has not exchanged Exchange
Notes for all Registrable Notes validly tendered in accordance with the
terms of the Exchange Offer on or prior to 30 days after the date on which
the Exchange Offer Registration Statement was declared effective, or (B) if
applicable, a Shelf Registration Statement has been declared effective and
such Shelf Registration Statement ceases to be effective prior to three
years from its original effective date, then, subject to certain
exceptions, Penalty Interest shall be accrued on the Registrable Notes over
and above the accrued interest at a rate of .50% per annum for the first 60
days immediately following the (x) 31st day after such effective date, in
the case of (A) above, or (y) the day such Shelf Registration Statement
ceases to be effective in the case of (B) above, such Penalty Interest rate
increasing by an additional .25% per annum at the beginning of each
subsequent 60-day period;
provided, however, that the Penalty Interest rate on the Registrable Notes may
not exceed 1.5% per annum; and provided further that (1) upon the filing of the
Exchange Offer Registration Statement or a Shelf Registration Statement (in the
case of (d)(i) above), (2) upon the effectiveness of the Exchange Offer
Registration Statement or a Shelf Registration Statement (in the case of
(d)(ii) above), or (3) upon the exchange of Exchange Notes for all Registrable
Notes tendered in the Exchange Offer or upon the effectiveness of the Shelf
Registration Statement which had ceased to remain effective prior to three
years from its original effective date (in the case of (d)(iii) above), Penalty
Interest on the Registrable Notes as a result of such clause (i), (ii) or (iii)
shall cease to accrue.
Any amounts of Penalty Interest due pursuant to clause (i), (ii) or (iii)
above will be payable in cash on the interest payment dates of the Registrable
Notes. The amount of Penalty Interest will be determined by multiplying the
applicable Penalty Interest rate by the principal amount of the Registrable
Notes, multiplied by a fraction, the numerator of which is the number of days
such Penalty Interest rate was applicable during such period (determined on the
basis of a 360-day year composed of twelve 30-day months), and the denominator
of which is 360.
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If the Company effects the Exchange Offer, the Company will be entitled to
close the Exchange Offer provided that it has accepted all Registrable Notes
theretofore validly tendered in accordance with the terms of the Exchange Offer.
Registrable Notes not tendered in the Exchange Offer shall bear interest at the
same rate as in effect at the time of issuance of the Registrable Notes.
(e) Without limiting the remedies available to the Purchasers and the
Holders, the Company and the Guarantors acknowledge that any failure by the
Company and the Guarantors to comply with their obligations under Section 2(a)
and Section 2(b) hereof may result in material irreparable injury to the
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 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 2(b) hereof.
3. Registration Procedures.
In connection with the obligations of the Company and the Guarantors with
respect to the Registration Statements pursuant to Section 2(a) and Section
2(b) hereof, the Company and the Guarantors shall reasonably promptly:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the 1933 Act, which form shall (x) be selected by the
Company, (y) in the case of a Shelf Registration, be available for the sale of
the Registrable Notes by the selling Holders thereof and (z) comply as to form
in all material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed therewith, and
use their best efforts to cause such Registration Statement to become effective
and remain effective in accordance with Section 2 hereof;
(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 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 1933 Act; and keep each
Prospectus current during the period described under Section 4(3) and Rule 174
under the 1933 Act that is applicable to transactions by brokers or dealers with
respect to the Registrable Notes or Exchange Notes;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes, to counsel for the Purchasers and to counsel for the Holders,
without charge, as many copies of each Prospectus, including each preliminary
Prospectus and any amendment or supplement thereto and such other documents as
such Holder may
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reasonably request, in order to facilitate the public sale or other disposition
of the Registrable Notes; 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 Notes in connection
with the offering and sale of the Registrable Notes covered by and in the manner
described in such Prospectus or any amendment or supplement thereto in
accordance with applicable law;
(d) use their best efforts (i) to register or qualify the
Registrable Notes and the Guarantees under all applicable state securities or
blue sky laws of such jurisdictions as any Holder of Registrable Notes covered
by a Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC and (ii) to
cooperate with such 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 which may be reasonably necessary or advisable to enable
such Holder to consummate the disposition in each such jurisdiction of such
Registrable Notes owned by such Holder; provided, however, that the Company and
the Guarantors shall not be required to (A) qualify as a foreign corporation or
as a dealer in securities in any jurisdiction where they would not otherwise be
required to qualify but for this Section 3(d), (B) file any general consent to
service of process or (C) subject themselves to taxation in any such
jurisdiction if they are not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Notes, counsel for the Holders and counsel for the Purchasers
promptly and, if requested by any such Holder, counsel for the Holders or
counsel for the Purchasers, confirm such advice in writing (i) when a
Registration Statement has become effective and when 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 Notes covered thereby, the representations and
warranties of the Company contained in any securities sales agreement or other
similar agreement, if any, relating to the offering cease to be true and correct
in all material respects or if the Company receives any notification with
respect to the suspension of the qualification of the Registrable Notes for sale
in any jurisdiction or the initiation of any proceeding for such purpose, (v) of
the happening of any event during the period a Shelf Registration Statement is
effective which makes any statement made in such Registration Statement or the
related Prospectus untrue in any material respect or which requires the making
of any changes in such Registration Statement or Prospectus in order to make the
statements therein not misleading and (vi)
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of any determination by the Company that a post-effective amendment to a
Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide immediate notice to each Holder of the withdrawal of
any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without
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 Notes to facilitate the timely preparation and delivery
of certificates representing Registrable Notes to be sold and not bearing any
restrictive legends and enable such Registrable Notes to be in such
denominations (consistent with the provisions of the Indenture) and registered
in such names as the selling Holders may reasonably request at least two
business days prior to the closing of any sale of Registrable Notes;
(i) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(e)(v) hereof, use their best efforts to prepare
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 the purchasers of
the Registrable Notes, 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 light of the circumstances under which they were made,
not misleading. The Company agrees to notify the Holders to suspend use of the
Prospectus as promptly as practicable after the occurrence of such an event, and
the Holders hereby agree to suspend use of the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus, provide copies of such document to the
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, counsel for the Holders) and make such of the representatives of the
Company as shall be reasonably requested by the Purchasers or its counsel (and,
in the case of a Shelf Registration Statement, counsel for the Holders),
available for discussion of such document, and shall not at any time file or
make any amendment to the Registration Statement, any Prospectus or any
amendment of or supplement to a Registration Statement or a Prospectus, of which
the Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, counsel for the Holders) shall not have previously been advised and
furnished a copy or to which the
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Purchasers or their counsel (and, in the case of a Shelf Registration Statement,
counsel for the Holders) shall object reasonably promptly in light of the
circumstances;
(k) obtain a CUSIP number for all Exchange Notes or Registrable
Notes (if applicable), 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 of 1939, as amended (the "TIA"), in connection with the registration of the
Exchange Notes or Registrable Notes, 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 TIA and execute, and use their best 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, make available for
inspection by a representative of the Holders of the Registrable Notes, and
attorneys and accountants designated by the Holders and reasonably acceptable to
the Company, at reasonable times and in a reasonable manner and subject to the
execution of appropriate confidentiality agreements, all financial and other
records, pertinent documents and properties of the Company and the Guarantors,
and cause the respective officers, directors and employees of the Company and
the Guarantors to supply all information reasonably requested by any such
representative, attorney or accountant in connection with a Shelf Registration
Statement;
(n) if reasonably requested by any Holder of Registrable Notes
covered by a Registration Statement, (i) 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 (ii) make
all required filings of such Prospectus supplement or such post-effective
amendment as soon as the Company has received notification of the matters to be
incorporated in such filing; and
(o) in the case of a Shelf Registration, in connection with the
initial effectiveness thereof and thereafter each time the Company files its
Annual Report on Form 10-K with the SEC, enter into such customary agreements
and take all such other reasonable actions in connection therewith (including
those reasonably requested by counsel for the Holders) in order to expedite or
facilitate the disposition of such Registrable Notes and in such connection, (i)
to the extent possible, make such representations and warranties to the Holders
of such Registrable Notes with respect to the business of the Company and its
subsidiaries, the Registration Statement, Prospectus and documents incorporated
by reference or deemed incorporated by reference, if any,
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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 (which
counsel and opinions, in form, scope and substance, shall be reasonably
satisfactory to the Holders and counsel for the Holders) addressed to each
selling Holder of Registrable Notes, covering the matters customarily
covered in opinions requested in underwritten offerings, (iii) obtain
"cold comfort" letters from the independent certified public accountants
of the Company (and, if necessary, any other certified public accountant
of any subsidiary of the Company, or of any business acquired by the
Company for which financial statements and financial data are or are
required to be included in the Registration Statement) addressed to each
selling Holder of Registrable Notes, such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings, and (iv) deliver such
documents and certificates as may be reasonably requested by counsel for
the Holders to evidence the continued validity of the representations and
warranties of the Company made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in an
underwriting agreement.
In the case of a Shelf Registration Statement, the Company may require
each Holder of Registrable Notes to promptly furnish to the Company such
information regarding the Holder and the proposed distribution by such Holder
of such Registrable Notes as the Company may from time to time reasonably
request in writing. Any Holder of Registrable Notes who fails to provide such
information reasonably requested by the Company shall not be entitled to
receive any Penalty Interest that the Company otherwise becomes obligated to
pay as a result of such failure.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company of the happening of any event of
the kind described in Section 3(e)(v) hereof, such Holder will forthwith
discontinue disposition of Registrable Notes pursuant to a Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(i) hereof, and, if so directed by
the Company, such Holder will deliver to the Company (at its expense) all
copies in its possession, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registrable Notes current
at the time of receipt of such notice. Each Holder agrees to indemnify the
Company, the Guarantors, the Purchasers and the other selling Holders and each
of their respective officers and directors who sign the Registration Statement
and each person, if any, who controls any such person for any losses, claims,
damages and liabilities caused by the failure of such Holder to discontinue
disposition of Registrable Notes after receipt of the notice referred to in the
preceding sentence or the failure of such Holder to comply with applicable
prospectus delivery requirements with respect to any Prospectus (including, but
not limited to, any amended or supplemented Prospectus) provided by the Company
for such use.
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4. Participation of Broker-Dealers in Exchange Offer.
(a) The Company understands that the Staff of the SEC has taken the
position that any broker-dealer that receives Exchange Notes for its own
account in the Exchange Offer in exchange for Senior Subordinated Notes 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 1933 Act and must deliver a prospectus
meeting the requirements of the 1933 Act in connection with any resale of such
Exchange Notes.
The Company understands that it is the Staff's 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 Notes, without
naming the Participating Broker-Dealers or specifying the amount of Exchange
Notes owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus delivery obligation under the 1933
Act in connection with resales of Exchange Notes for their own accounts, so
long as the Prospectus otherwise meets the requirements of the 1933 Act.
(b) In light of the above, notwithstanding the other provisions of
this Agreement, the Company agrees that the provisions of this Agreement as they
relate to a Shelf Registration shall also apply to an Exchange Offer
Registration to the extent, and with such reasonable modifications thereto as
may be, reasonably requested by the Purchasers or by one or more Participating
Broker-Dealers, in each case as provided in clause (ii) below, in order to
expedite or facilitate the disposition of any Exchange Notes by Participating
Broker-Dealers consistent with the positions of the Staff recited in Section
4(a) above; provided that:
(i) the Company shall not be required to amend or supplement
the Prospectus contained in the Exchange Offer Registration Statement, as
would otherwise be contemplated by Section 3(i), for a period exceeding 180
days after the Offer Termination Date and Participating Broker-Dealers
shall not be authorized by the Company to deliver and shall not deliver
such Prospectus after such period in connection with the resales
contemplated by this Section 4; and
(ii) the application of the Shelf Registration procedures set
forth in Section 3 of this Agreement to an Exchange Offer Registration, to
the extent not required by the positions of the Staff of the SEC or the
1933 Act and the rules and regulations thereunder, will be in conformity
with the reasonable request to the Company by the Purchasers or with the
reasonable request in writing to the Company by one or more broker-dealers
who certify to the Purchasers and the Company in writing that they
anticipate that they will be Participating Broker-Dealers; and provided
further that, in connection with such application of the Shelf Registration
procedures set forth in Section 3 to an Exchange Offer Registration, the
Company shall be obligated (x) to deal only
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with one entity representing the Participating Broker-Dealers, which shall
be ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. unless it elects not to act as such representative,
(y) to pay the fees and expenses of only one counsel representing the
Participating Broker-Dealers, which shall be counsel to the Purchasers
unless such counsel elects not to so act and (z) to cause to be delivered
only one, if any, "cold comfort" letter with respect to the Prospectus in
the form existing on the Offer Termination Date and with respect to each
subsequent amendment or supplement, if any, effected during the period
specified in clause (i) above.
(c) The Purchasers shall have no liability to the Company or any
Holder for costs and expenses of the Exchange Offer Registration with respect to
any request that they may make pursuant to Section 4(b) above.
5. Indemnification and Contribution.
(a) The Company and the Guarantors agree to indemnify and hold
harmless the Purchasers, each Holder and each person, if any, who controls the
Purchasers or any Holder within the meaning of either Section 15 of the 1933 Act
or Section 20 of the 1934 Act, or is under common control with, or is controlled
by, the Purchasers or any Holder, from and against all losses, claims, damages
and liabilities (including, without limitation, any legal or other expenses
reasonably incurred by the Purchasers, any Holder or any such controlling or
affiliated person in connection with defending or investigating any such action
or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any amendment thereto)
pursuant to which Exchange Notes or Registrable Notes were registered under the
1933 Act, including all documents incorporated therein by reference, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, or
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact necessary to make the
statements therein in light of the circumstances under which they were made not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to the Purchasers or any Holder
furnished to the Company in writing by the Purchasers or any selling Holder
expressly for use therein and, in the case of a Shelf Registration including a
plan of distribution section, such plan of distribution section; provided,
however, that the indemnification contained in this paragraph (a) with respect
to such Registration Statement or Prospectus shall not inure to the benefit of
any Purchaser, any Holder or any such controlling or affiliated person on
account of any such loss, claim, damages or liabilities caused by the failure of
such person to discontinue disposition of Registrable Notes after receipt of the
notice referred to in the final paragraph of Section 3 hereof.
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(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Guarantors, the Purchasers and the other selling
Holders, and each of their respective directors and officers who sign the
Registration Statement and each Person, if any, who controls the Company, the
Guarantors, the Purchasers and any other selling Holder within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act to the same
extent as the foregoing indemnity from the Company and the Guarantor to the
Purchasers and the Holders, but only with reference to information relating to
such Holder furnished to the Company in writing by such Holder expressly for use
in any Registration Statement (or any amendment thereto) or any Prospectus (or
any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or paragraph (b) above, such person
(the "indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party 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 party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for (a)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for the Purchasers and all persons, if any, who control the Purchasers
within the meaning of either Section 15 of the 1933 Act or ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇
▇▇▇▇ ▇▇▇, (▇) the fees and expenses of more than one separate firm (in addition
to any local counsel) for the Company and the Guarantors, their directors,
their officers who sign the Registration Statement and each person, if any, who
controls the Company and the Guarantors within the meaning of either such
Section and (c) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Holders and all persons, if any, who
control any Holders within the meaning of either such Section, and that all
such fees and expenses shall be reimbursed as they are incurred. In such case
involving the Purchasers and persons who control the Purchasers, such firm
shall be designated in writing by the Purchasers. In such case involving the
Holders and such persons who control Holders, such firm shall be designated in
writing by the Majority Holders. In all other cases, such firm shall be
designated by the Company. The indemnifying party 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 party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
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Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have properly requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any good faith settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party for such fees
and expenses of counsel in accordance with such request prior to the date of
such settlement. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which such indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) If the indemnification provided for in paragraph (a) or paragraph
(b) of this Section 4 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or parties on the one hand and of the indemnified party or parties on the
other hand 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, the Guarantors and the
Holders 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. The Holders' respective obligations to contribute
pursuant to this Section 5(d) are several in proportion to the respective
principal amount of Registrable Notes of such Holder that were registered
pursuant to a Registration Statement.
(e) The Company, the Guarantors and each Holder agree that it would
not be just or equitable if contribution pursuant to this Section 5 were
determined by pro rata allocation 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 party 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 reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5, no Holder shall be required to indemnify or
contribute any amount in excess of the amount by which the total price at which
Registrable Notes were 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 ▇▇▇▇
▇▇▇) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The remedies provided for in
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this Section 5 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 5
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 Purchasers, any Holder or any person controlling the Purchasers or any
Holder, or by or on behalf of the Company and the Guarantors, their officers or
directors or any person controlling the Company and the Guarantors, (iii)
acceptance of any of the Exchange Notes and (iv) any sale of Registrable Notes
pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Company and the Guarantors have
not entered into, and on or after the date of this Agreement will not enter
into, any agreement which is inconsistent with the rights granted to the Holders
of Registrable Notes in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any
way conflict with and are not inconsistent with the rights granted to the
holders of the Company's or the Guarantors' other issued and outstanding
securities under any such agreements.
(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 has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding
Registrable Notes affected by such amendment, modification, supplement, waiver
or consent; provided, however, that no amendment, modification, supplement,
waiver or consents to any departure from the provisions of Section 5 hereof
shall be effective as against any Holder of Registrable Notes unless consented
to in writing by such Holder.
(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 a Holder, at the most current address given by such Holder
to the Company by means of a notice given in accordance with the provisions of
this Section 6(c), which address initially is, with respect to the Purchasers,
the address set forth in the Purchase Agreement; and (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 6(c).
All such notices and communications shall be deemed to have been duly
given at the time delivered by hand, if 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.
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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 or assumption, subsequent Holders; provided that nothing
herein shall be deemed to permit any assignment, transfer or other disposition
of Registrable Notes in violation of the terms of the Purchase Agreement. If
any transferee of any Holder shall acquire Registrable Notes, in any manner,
whether by operation of law or otherwise, such Registrable Notes shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Registrable Notes 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 Purchasers
shall have no liability or obligation to the Company 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 Notes. The Company shall not, and shall
use best efforts to cause its affiliates (as defined in Rule 405 under the ▇▇▇▇
▇▇▇) not to, purchase and then resell or otherwise transfer any Senior
Subordinated Notes.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the 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
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 and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by laws of the
State of New York.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof 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 herein shall not be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
INTERFACE, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
BENTLEY ▇▇▇▇▇, INC.
GUILFORD (DELAWARE), INC.
GUILFORD OF MAINE, INC.
INTERFACE ASIA-PACIFIC, INC.
INTERFACE EUROPE, INC.
INTERFACE FLOORING SYSTEMS, INC.
INTERFACE RESEARCH CORPORATION
PANDEL, INC.
PRINCE STREET TECHNOLOGIES, LTD.
ROCKLAND REACT-RITE, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Confirmed and accepted as of
the date first above written:
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇, PIERCE, FENNER, & ▇▇▇▇▇ INCORPORATED
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, INC.
WHEAT, FIRST SECURITIES, INC.
FIRST CHICAGO CAPITAL MARKETS, INC.
By ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: