Exhibit 4.4
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REGISTRATION RIGHTS AGREEMENT
Dated as of December 1, 1997
by and among
KOPPERS INDUSTRIES, INC.
THE SUBSIDIARY GUARANTORS NAMED HEREIN
and
SBC WARBURG DILLON READ INC.
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This Registration Rights Agreement (the "Agreement") is made and
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entered into as of December 1, 1997 by and among KOPPERS INDUSTRIES, INC., a
Pennsylvania corporation (the "Company"), the SUBSIDIARY GUARANTORS (as defined
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herein) and SBC WARBURG DILLON READ INC. (the "Initial Purchaser"). The
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execution and delivery of this Agreement is a condition to the obligations of
the Initial Purchaser to purchase $175,000,000 of the Company's 9 7/8% Senior
Subordinated Notes due 2007 under the Purchase Agreement, dated as of November
20, 1997 (the "Purchase Agreement"), by and among the Company, the Subsidiary
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Guarantors and the Initial Purchaser.
The Company, the Subsidiary Guarantors and the Initial Purchaser
hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Act: The Securities Act of 1933, as amended, and the rules and
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regulations promulgated by the Commission pursuant thereto.
Action: As defined in Section 8(c) of this Agreement.
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Broker-Dealer: Any broker or dealer registered under the Exchange
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Act.
Closing Date: The date that the Notes are purchased by the Initial
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Purchaser pursuant to the Purchase Agreement.
Commission: The Securities and Exchange Commission.
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Consummate: A Registered Exchange Offer shall be deemed "Consummated"
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for purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the 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 Indenture of New Notes in the same aggregate
principal amount as the aggregate principal amount of Old Notes that were so
tendered.
Damages Payment Date: With respect to the Notes, each Interest
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Payment Date.
Effectiveness Target Date: As defined in Section 5 of this Agreement.
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Exchange Act: The Securities Exchange Act of 1934, as amended, and
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the rules and regulations promulgated by the Commission pursuant thereto.
Exchange Offer: The registration under the Act by the Company and the
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Subsidiary Guarantors of the New Notes pursuant to a Registration Statement
pursuant to which the Company and the Subsidiary Guarantors offer the Holders of
all outstanding Transfer Restricted Securities the opportunity to exchange all
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 Effective Date: The dated on which the Exchange Offer
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Registration Statement is declared effective by the Commission.
Exchange Offer Registration Statement: The Registration Statement
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relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchaser
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proposes to sell the Notes to (i) certain "qualified institutional buyers," as
such term is defined in Rule 144A under the Act, and (ii) other eligible
purchasers pursuant to Regulation S under the Act.
Holders: As defined in Section 2(b) of this Agreement.
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Indenture: The Indenture, dated as of December 1, 1997, by and among
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the Company, the Subsidiary Guarantors and PNC Bank, National Association, as
trustee (the "Trustee"), pursuant to which the Notes are to be issued, as such
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Indenture is amended or supplemented from time to time in accordance with its
terms.
Initial Purchaser: SBC Warburg Dillon Read Inc.
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Interest Payment Date: As defined in the Notes.
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NASD: National Association of Securities Dealers, Inc.
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New Notes: The Company's 9 7/8% Senior Subordinated Notes due 2007 to
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be issued pursuant to the Indenture in connection with the Exchange Offer and
evidencing the same debt
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as the Old Notes, including the guarantees by the Subsidiary Guarantors.
Notes: Old Notes and New Notes.
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Old Notes: The Company's 9 7/8% Senior Subordinated Notes due 2007 to
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be issued pursuant to the Indenture on the Closing Date, including the
guarantees by the Subsidiary Guarantors.
Participating Broker Dealer: As defined in Section 6(a)(iii) of this
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Agreement.
Person: An individual, partnership, corporation, trust or
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unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in a Registration Statement, as
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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: As defined in Section 5 of this Agreement.
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Registration Statement: Any registration statement of the Company and
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the Subsidiary Guarantors 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: As defined in Section 4(a) of this Agreement.
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Shelf Registration Statement: As defined in Section 4(a) of this
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Agreement.
Subsidiary: With respect to any Person, any other Person of which a
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majority of the equity ownership or the voting securities is at the time owned,
directly or indirectly, by such
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Person or by one or more other subsidiaries of such Person or a combination
thereof.
Subsidiary Guarantors: Each Subsidiary of the Company that, pursuant
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to the Indenture, is, or is required to become, a guarantor of the obligations
of the Company under the Notes and the Indenture.
TIA: The Trust Indenture Act of 1939, as amended (15 U.S.C. Section
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77aaa-77bbbb), as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note until the earliest to occur
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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 is distributed to the public pursuant to Rule 144 under the Act.
Underwritten Registration or Underwritten Offering: A registration in
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which securities of the Company are sold to an un derwriter 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
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benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to
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be a holder of Transfer Restricted Securities (each, a "Holder") whenever such
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Person beneficially owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless, due to a change in law or Commission policy after the date
hereof, the Exchange Offer shall not be permissible under applicable federal law
or Commission policy, the Company and the Subsidiary Guarantors shall (i) cause
to be
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filed with the Commission as soon as practicable on or prior to 45 days after
the Closing Date, a Registration Statement under the Act relating to the New
Notes and the Exchange Offer and (ii) use their best efforts to cause such
Registration Statement to be declared effective by the Commission as soon as
practicable on or prior to 90 days after the Closing Date. In connection with
the foregoing, the Company and the Subsidiary Guarantors shall (A) file all pre-
effective amendments to such Registration Statement as may be necessary to cause
such Registration Statement to become effective, (B) if applicable, file a post-
effective amendment to such 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 and the Subsidiary Guarantors shall not be
obligated to qualify as foreign corporations in any jurisdiction in which they
are not so qualified or to take any action that would subject them to general
service of process or taxation in any jurisdiction where they are not so
subject, except service of process with respect to the offering and sale of the
Notes and Exchange Notes) and (D) upon the effectiveness of such Registration
Statement, commence the Exchange Offer and use their best efforts to issue on or
prior to 45 days after the Exchange Offer Effective Date, New Notes in exchange
for all Old Notes tendered 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 Transfer Restricted Securities and to permit 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 inter fered with by any
stop order, injunction or other order or requirement of the Commission or any
other governmental agency or court, such 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
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event shall such period be less than 20
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business days. The Company and the Subsidiary Guarantors shall cause the
Exchange Offer to comply with all applicable federal and state securities laws.
The Company and the Subsidiary Guarantors shall only offer to exchange New Notes
for Old Notes in the Exchange Offer, and only the New Notes shall be registered
under the Exchange Offer Registration Statement.
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus included in the Exchange Offer Registration
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), may exchange such Old
Notes pursuant to the Exchange Offer; provided, however, that such Broker-Dealer
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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
the 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 and the Subsidiary Guarantors shall use their 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. The Company shall provide
sufficient copies of the latest version of such Prospectus to Broker-Dealers
promptly upon request at any time during such period in order to facilitate such
resales.
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SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company and the Subsidiary
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Guarantors are 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 business days of 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
Purchaser who holds 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 or (iii) the Company and the Subsidiary Guarantors do not consummate
the Exchange Offer within 45 days following the effectiveness date of the
Exchange Offer Registration Statement, then the Company and the Subsidiary
Guarantors 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
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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 Re stricted Securities as contemplated
by clause (ii) above (such earliest date being the "Shelf Filing Deadline"),
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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(b) 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 90th day after the Shelf Filing Deadline. The
Company and the Subsidiary Guarantors shall use their best efforts to keep such
Shelf Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and (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 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 continuous period of two years following the
date on
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which such Shelf Registration Statement 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) Provision by Holders of Certain Information in Connection with the
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Shelf Registration Statement. No Holder of Transfer Restricted Securities may
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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 business days after receipt of a request
therefor, such information regarding such Holder 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. LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by this Agreement
is not filed with the Commission on or prior to the date specified for such
filing in this Agreement, (ii) any of such Registration Statements has not been
declared effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target Date"), (iii) the
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Exchange Offer has not been Consummated within 45 business days after the
Exchange Offer Effective 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 and the Subsidiary
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Guarantors hereby agree to pay liquidated damages to each Holder of Transfer
Restricted Securities with respect to the first 90-day period immediately
following the occurrence of such Registration Default, in an amount equal to
$.05 per week per $1,000 principal amount of Notes constituting Transfer
Restricted Securities held by such Holder for each week or portion thereof that
the Registration Default continues. The amount of the liquidated damages shall
increase by an additional $.05 per week per $1,000 in principal amount of Notes
constituting Transfer Restricted Securities with respect to each subsequent 90-
day
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period until all Registration Defaults have been cured, up to a maximum amount
of liquidated damages of $.30 per week per $1,000 in principal amount of Notes
constituting Transfer Restricted Securities. Notwithstanding the foregoing, the
Company and the Subsidiary Guarantors shall not be required to pay liquidated
damages to each Holder of Transfer Restricted Securities if the Registration
Default arises from the failure of the Company and the Subsidiary Guarantors to
file, or cause to become effective, a Shelf Registration Statement within the
time period required by Section 4 of this Agreement and such Registration
Default is by reason of the failure of the Holders to provide the information
regarding the Holder reasonably requested by the Company, the NASD or any other
regulatory agency having jurisdiction over any of the Holders at least 10
business days prior to such Registration Default. All accrued liquidated
damages shall be paid by the Company and the Subsidiary Guarantors on each
Damages Payment Date to the Holders by wire transfer of immediately available
funds or by federal funds check and to the Holders of certificated securities by
mailing a check to such Holders' registered addresses. Following the cure of
all Registration Defaults relating to any particular Transfer Restricted
Securities, the accrual of liquidated damages with respect to such Transfer
Restricted Securities will cease.
All obligations of the Company and the Subsidiary Guarantors 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
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Exchange Offer, the Company and the Subsidiary Guarantors shall comply with all
of the provisions of Section 6(c) below, shall use their 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, due to a change in law or Commission policy after the date
hereof, in the reasonable opinion of special 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-
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action letter or other favorable decision from the Commission allowing the
Company and the Subsidiary Guarantors 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 but
shall not be required to take commercially unreasonable action to effect a
change of Commission policy. The Company hereby agrees, however, to (A)
participate in telephonic conferences with the Commission, (B) deliver to
the Commission an analysis prepared by special 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 pursue a resolution (which need not be favorable) by the
Commission of such submission. The Initial Purchaser 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 or any of the Subsidiary Guarantors, (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. In addition, all such Holders of
Transfer Restricted Securities shall otherwise cooperate in the Company's
preparations for the Exchange Offer.
(iii) The Company, the Subsidiary Guarantors and the Initial
Purchaser 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
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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
(other than a resale of an unsold allotment resulting from the original
offering of the Notes).
The Company, the Subsidiary Guarantors and the Initial Purchaser also
acknowledge that it is the Commission staff's
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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, so long as the Prospectus
otherwise meets the requirements of the Act.
(b) Shelf Registration Statement. In the event that a Shelf
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Registration Statement is required by this Agreement, the Company and the
Subsidiary Guarantors shall comply with all the provisions of Section 6(c) of
this Agreement and shall use their 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 and the Subsidiary
Guarantors will 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.
(c) General Provisions. In connection with any Registration Statement
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and any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
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 and
the Subsidiary Guarantors shall:
(i) use their 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
Subsidiary 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
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Company shall promptly notify the Holders to suspend use of the Prospectus,
and the Holders shall suspend use of the Prospectus, and such Holders shall
not communicate non-public information to any third party, in violation of
the securities laws, until the Company and the Subsidiary Guarantors have
made an appropriate amendment to such Registration Statement, in the case
of clause (A), correcting any such misstatement or omission, and, in the
case of either clause (A) or (B), the Company and the Subsidiary Guarantors
shall use their 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 amendments 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, as applicable, 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 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 Purchaser,
and, in the case of a Shelf Registration Statement, each of the selling
Holders promptly and, if requested by such Persons, to 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,
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(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 in any material
respect, 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 and the Subsidiary
Guarantors shall use their 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
Purchaser 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 reasonable review of such
underwriter(s), if any, the Initial Purchaser, and such Holders for a
period of at least five business days, and the Company and the Subsidiary
Guarantors will not file any such Registration Statement or Prospectus or
any amendment or 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
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selling Holder shall reasonably object within five business days after the
receipt of such Registration Statement or Prospectus. A selling Holder or
underwriter, if any, shall be deemed to have reasonably objected to such
filing if such Registration Statement, Prospectus, amendment or supplement,
as applicable, as proposed to be filed, contains a material misstatement or
omission;
(v) 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 and to the
underwriter(s), if any, (b) make the Company's and the Subsidiary
Guarantors' representatives available for discussion of such document and
other customary due diligence matters; provided that such discussion and
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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 Subsidiary Guarantors and cause the Company's and
the Subsidiary 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
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such persons shall first agree in writing with the Company that any
information that is reasonably and in good faith designated by the Company
in writing as confidential at the time of delivery of such information
shall be kept confidential by such persons, unless and to the extent that
(i) disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory authorities,
(ii) disclosure of such information is required by law (including any
disclosure requirements pursuant to federal securities laws in connection
with the filing of the Shelf Registration Statement or the use of any
Prospectus), (iii) such
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information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard such information by such
person or (iv) such information becomes available to such person from a
source other than the Company and its Subsidiaries and such source is not
bound by a confidentiality agreement;
(vii) if requested by any selling Holders or the underwriter(s),
if any, promptly incorporate 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 incorporated 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 Purchaser
and upon request to the Company to a selling Holder without charge, at
least one conformed copy of the Registration Statement, as first filed with
the Commission, and of each amendment thereto, including, upon the request
of such Person, all documents incorporated by reference therein and all
exhibits to the extent requested (including exhibits incorporated therein
by reference);
(ix) deliver to each selling Holder, each of the underwriter(s), if
any, and the Initial Purchaser, 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 and
the Subsidiary Guarantors hereby consent 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
-16-
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 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 and the
Subsidiary Guarantors shall (i) 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; (ii) obtain opinions of counsel to the
Company and the Subsidiary Guarantors 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; (iii) use their 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),
-17-
addressed (where reasonably possible) 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; (iv)
if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less 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 (v) 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 (i) 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 and
the Subsidiary Guarantors contemplated in clause (A)(1) above cease to be true
and correct, the Company shall so advise the Initial Purchaser 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 and cause the Subsidiary Guarantors to 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 in writing and do any and all other 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 neither the Company nor the Subsidiary Guarantors
-------- -------
shall 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
-18-
Registration Statement, in any jurisdiction where it is not now so subject;
(xii) if a Shelf Registration is filed pursuant to Section 2(b),
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
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 and cause the Subsidiary
Guarantors to 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
-19-
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 number for all Transfer Restricted
Securities not later than the effective date of the Registration Statement
and provide the Trustee under the Indenture with printed 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
any underwriter (including 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 earning statement
of the Company 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;
(xix) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement required by
this Agreement, and, in connection therewith, cooperate with the Trustee
and the Holders to effect such changes to the Indenture, if any, as may be
required for such Indenture to be so qualified in accordance with the terms
of the TIA; and execute, and use its best efforts to cause 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 Indenture to be so qualified in a timely manner.
-20-
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 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 shall have
received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All fees and expenses incident to the Company's and the Subsidiary
Guarantors' 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 filings made with the NASD (and, if applicable, the 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, the Subsidiary Guarantors and, subject
to Section 7(b) below, the Holders of Transfer Restricted Securities; and (v)
all fees and disbursements of independent certified public accountants of the
Company and the Subsidiary Guarantors
-21-
(including the expenses of any special audit and comfort letters required by or
incident to such performance).
The Company and the Subsidiary Guarantors will, in any event, bear
their internal expenses (including, without limitation, all salaries and
expenses of their 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 them.
Notwithstanding the foregoing or anything in this Agreement to the
contrary, each Holder of Transfer Restricted Notes shall pay all underwriting
discounts and commissions of any underwriters with respect to any Notes sold by
or on behalf of it.
(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 Purchaser 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) Each of the Company and the Subsidiary Guarantors, on a joint and
several basis, agrees to indemnify and hold harmless (i) the Initial Purchaser,
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 of the Exchange Act (any of the
persons referred to in this clause (ii) being hereinafter referred to as a
"controlling person") and (iii) its agents, employees, officers and directors
-------------------
and the agents, employees, officers and directors of any such controlling person
(collectively, the "Indemnified Persons") 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,
-22-
commenced or threatened, or any claim whatsoever, and any and all reasonable
amounts paid in settlement of any claim or litigation) to which they or any of
them may become subject under the Act, the Exchange Act or otherwise, insofar as
such losses, liabilities, claims, damages or expenses (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 or
Prospectus, or in any amendment thereof or supplement thereto, 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 and the Subsidiary Guarantors will not be
-------- -------
liable in any such case to the extent, but only to the extent, that any such
loss, liability, claim, damage or expense 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. This indemnity
agreement will be in addition to any liability that the Company and the
Subsidiary Guarantors may otherwise have, including, but not limited to,
liability under this Agreement.
If any action is brought against any Indemnified Persons or any such
person in respect of which indemnity may be sought against the Company and the
Subsidiary Guarantors pursuant to the foregoing paragraph, such Indemnified
Persons or such person shall promptly notify the indemnifying party in writing
of the institution of such action and the indemnifying party shall assume the
defense of such action, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses,
provided, however, except to the extent that the indemnifying party shall be
materially prejudiced thereby (through the forfeiture of substantive rights or
defenses), that the omission to so notify the indemnifying party shall not
relieve the indemnifying party from any liability which they may have to the
Indemnified Persons or any such person or otherwise. Such Indemnified Persons
shall have the right to employ its own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Persons
unless the employment of such counsel shall have been authorized in writing by
the indemnifying party in connection with the defense of such action or the
indemnifying party shall not have employed counsel to have charge of the defense
of such action or such indemnified party or parties shall have reasonably
concluded that there may be defenses available to
-23-
it or them which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party 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 shall be borne by the
indemnifying party and paid as incurred (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (together with appropriate local counsel) in any one action or
series of related actions in the same jurisdiction representing the indemnified
parties who are parties to such action). The indemnifying party shall not be
liable for any settlement of any such claim or action effected without its
written consent but if settled with the written consent of the indemnifying
party, the indemnifying party agrees to indemnify and hold harmless any
Indemnified Persons and any such person from and against any loss or liability
by reason of such settlement. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second sentence of this paragraph, then the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 60 business
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 days'
prior notice of its intention to settle. 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 any 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.
(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 and the Subsidiary Guarantors, their respective directors
and officers and any person controlling the Company or a Subsidiary Guarantor
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, and each of their agents, employees, officers and directors and
the agents, employees, officers and directors of such controlling person from
-24-
and against any 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) to
which they or either of them may become subject under the Act, the Exchange Act
or otherwise insofar as such losses, liabilities, claims, damages or expenses
(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, or in any amendment thereof or supplement thereto, 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, in each case to the extent, but only to the extent, that
any such loss, liability, claim, damage or expense arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information relating to such Holder furnished to the Company by such Holder
expressly for use in such Registration Statement.
If any action is brought against the Company or the Subsidiary
Guarantors or any such person in respect of which indemnity may be sought
against any Holder of Transfer Restricted Securities pursuant to foregoing
paragraph, the Company, the Subsidiary Guarantors or such person shall promptly
notify such Holder in writing of the institution of such action and such Holder
shall assume the defense of such action, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all fees and
expenses, provided, however, except to the extent that the indemnifying party
shall be materially prejudiced thereby (through the forfeiture of substantive
rights or defenses), that the omission to so notify such Holder shall not
relieve such Holder from any liability which they may have to the Company, the
Subsidiary Guarantors or any such person or otherwise. The Company, the
Subsidiary Guarantors or such person shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of the Company or such person unless the employment of such counsel
shall have been authorized in writing by such Holder of Transfer Restricted
Securities in connection with the defense of such action or such Holder shall
not have employed counsel to have charge of the defense of such action or such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them
-25-
which are different from or additional to those available to such Holder (in
which case such Holder shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties, but such Holder may employ
counsel and participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Holder), in any of which events such
fees and expenses shall be borne by such Holder and paid as incurred (it being
understood, however, that such Holder shall not be liable for the expenses of
more than one separate counsel in any one action or series of related actions in
the same jurisdiction representing the indemnified parties who are parties to
such action). Anything in this paragraph to the contrary notwithstanding, any
Holder of Transfer Restricted Securities shall not be liable for any settlement
of any such claim or action effected without the written consent of such Holder
but if settled with the written consent of such Holder, such Holder agrees to
indemnify and hold harmless the Company, the Subsidiary Guarantors and any such
person from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 60 business days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
not have reimbursed the indemnifying party in accordance with such request prior
to the date of such settlement and (iii) such indemnified party shall have given
the indemnifying party at least 30 days' prior notice of its intention to
settle. 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 any 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.
(c) 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, the Subsidiary Guarantors and the Indemnified Parties shall contribute
to the aggregate losses, claims, damages,
-26-
liabilities and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action or any claims
asserted) to which the Company, and/or the Subsidiary Guarantors and the
Indemnified Parties may be subject, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Subsidiary
Guarantors, on the one hand, and the Indemnified Parties, on the other hand,
from the offering of the Old Notes or, (ii) if such allocation is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Subsidiary Guarantors, on the one hand, and the Indemnified
Parties, on the other hand, in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits received by
the Company and the Subsidiary Guarantors, on the one hand, and the Indemnified
Parties, on the other hand, 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 Offering Memorandum bear to the total proceeds received by
such Holder with respect to its sale of Transfer Restricted Securities or New
Notes. The relative fault of the Company and the Subsidiary Guarantors, on the
one hand, and the Indemnified Parties, 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 material fact
relates to information supplied by the Company, the Subsidiary Guarantors or the
Indemnified Parties and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Subsidiary Guarantors and the Initial Purchaser agree
that it would not be just and equitable if contribution pursuant to this
paragraph (c) 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
(c) of this Section 8, (i) in no case shall an Indemnified Party be required to
contribute any amount in excess of the amount by which the total received by
such Indemnified Party 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 Party has otherwise been required to pay by reason of any
untrue or alleged untrue
-27-
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 this paragraph (c) of this
Section 8, each person, if any, who controls an Indemnified Party within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such Indemnified Party, and each person, if
any, who controls the Company or the Subsidiary Guarantors within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company or the Subsidiary Guarantors, subject in
each case to clauses (i) and (ii) of this paragraph. 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 this paragraph 8(c), notify such
party or parties from whom contribution may be sought, but, except to the
extent that the indemnifying party shall be materially prejudiced thereby
(through the forfeiture of substantive rights and defenses), 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 this
paragraph (c) or otherwise. 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 was not unreasonably withheld.
-------
SECTION 9. RULE 144A
The Company and the Subsidiary Guarantors shall use their best
efforts, for so long as any Transfer Restricted Securities remain outstanding,
to make available to any Holder or beneficial owner of Transfer Restricted
Securities in connection with any sale of such securities and any prospective
purchaser of such Transfer Restricted Securities from such Holder or beneficial
owner, 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 any underwriting arrangements
approved by the Persons entitled under this Agreement to approve such
arrangements and (b) completes and executes all reasonable questionnaires,
powers
-28-
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 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 and the Subsidiary Guarantors agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it 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. Each of the Company and the
--------------------------
Subsidiary Guarantors 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 have not previously entered into any
agreement granting any registration rights with respect to its securities to any
Person. 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 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 Notes, the Company and the Subsidiary Guarantors will not take any
action, or permit any change to occur, with respect to the Notes that
-29-
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 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 a Registration Statement and that does not
affect directly or indirectly the rights of other Holders whose securities are
not being sold or tendered pursuant to such Registration Statement may be given
by the Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities being so sold or tendered.
(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 Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company or the Subsidiary Guarantors, at:
Koppers Industries, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇ III, Esq.
All such notices and communications shall be deemed to have been duly
given: (i) at the time delivered by hand, if
-30-
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, 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 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) Captions. The captions included in this Agreement are included
--------
solely for convenience of reference and are not to be considered a part 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 LAW RULES THEREOF.
(j) Submission to Jurisdiction. The Company and the Subsidiary
--------------------------
Guarantors irrevocably submit to the nonexclusive jurisdiction of any State or
Federal court sitting in New York over any suit, action or proceeding arising
out of or relating to this agreement. The Company and the Subsidiary Guarantors
irrevocably waive, to the fullest extent permitted by law, any objection it may
now or thereafter have to the laying of venue of any such court and any claim
that any such suit, action or proceeding brought in such a court has been
brought in an inconvenient forum. The Company and the Subsidiary Guarantors
agree that a final judgment in any such suit, action or proceeding brought in
any such court shall be conclusive and binding upon the Company and the
Subsidiary Guarantors and may be enforced in any other courts to the
jurisdiction of which the Company and the Subsidiary Guarantors are or may be
subject, by suit upon such judgment. The Company and the Subsidiary Guarantors
hereby appoint, without power of revocation, CT
-31-
Corporation System as its agent to accept and acknowledge on its behalf service
of any and all process which may be served in any suit, action or proceeding
arising out of or relating to this letter.
(k) 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.
(l) 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.
[Signatures on Next Page]
-32-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
KOPPERS INDUSTRIES, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:_________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
KOPPERS INDUSTRIES INTERNATIONAL
TRADE CORP.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
WORLD WIDE VENTURES CORPORATION
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
KOPPERS INDUSTRIES OF DELAWARE,
INC.
/s/ M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By:________________________
Name: M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary and Treasurer
-33-
KOPPERS CONCRETE PRODUCTS, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
CONCRETE PARTNERS INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
KOPPERS INDUSTRIES B.W., INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
KOPPERS FOREIGN INVESTMENT
CORPORATION
/s/ M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By:________________________
Name: M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
-34-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
written.
Date: December 1, 1997
-----
KOPPERS AUSTRALIA PTY LTD.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By:______________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Under Power of Attorney
CONTINENTAL CARBON AUSTRALIA
PTY LTD.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By:______________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Under Power of Attorney
KOPPERS TIMBER PRESERVATION
PTY LTD.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By:______________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Under Power of Attorney
KOPPERS COAL TAR PRODUCTS PTY
LTD.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By:______________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Under Power of Attorney
KOPPERS SHIPPING PTY LTD.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By:______________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Under Power of Attorney
-35-
Confirmed and Accepted and agreed as of the date
first above written:
SBC WARBURG DILLON READ INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Executive Director