Exhibit 10.26
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REGISTRATION RIGHTS AGREEMENT
Dated as of May 19, 1999
by and among
FAIRFIELD MANUFACTURING COMPANY, INC.
and
THE INITIAL PURCHASERS
named herein
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TABLE OF CONTENTS
Page
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1. Definitions............................................................1
2. Exchange Offer.........................................................5
3. Shelf Registration Statement...........................................9
4. Additional Interest...................................................10
5. Registration Procedures...............................................12
6. Registration Expenses.................................................23
7. Indemnification.......................................................25
8. Rules 144 and 144A....................................................29
9. Underwritten Registrations............................................29
10. Miscellaneous........................................................30
(a) Remedies...................................................30
(b) Enforcement................................................30
(c) No Inconsistent Agreements.................................30
(d) Adjustments Affecting Registrable Notes....................31
(e) Amendments and Waivers.....................................31
(e) Notices....................................................31
(g) Successors and Assigns.....................................32
(h) Counterparts...............................................33
(i) Headings...................................................33
(j) Governing Law..............................................33
(k) Severability...............................................33
(l) Entire Agreement...........................................33
(m) Notes Held by the Company or its Affiliates................33
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REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of
May 19, 1999, by and among Fairfield Manufacturing Company, Inc., a Delaware
corporation (the "Company"), and CIBC World Markets Corp., Fleet Securities,
Inc., ING Baring ▇▇▇▇▇▇ ▇▇▇▇ LLC and ▇▇▇▇▇▇▇▇ & Co. Inc., as initial purchasers
(the "Initial Purchasers").
This Agreement is entered into in connection with the Notes
Purchase Agreement, dated as of May 19, 1999 among the Company and the Initial
Purchasers (the "Purchase Agreement") relating to the sale by the Company to the
Initial Purchasers of $100,000,000 aggregate principal amount of the Company's
9-5/8% Senior Subordinated Notes due 2008. In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement to the Initial
Purchasers and their direct and indirect transferees and assigns. The execution
and delivery of this Agreement is a condition to the Initial Purchasers'
obligation to purchase the Notes under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: See Section 4(a).
Advice: See Section 5.
Applicable Period: See Section 2(b).
Closing: See the Purchase Agreement.
Company: See the introductory paragraph to this Agreement.
Effectiveness Date: The 180th day after the Issue Date.
Effectiveness Period: See Section 3(a).
Event Date: See Section 4(c).
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Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a).
Exchange Offer: See Section 2(a).
Exchange Offer Registration Statement: See Section 2(a).
Filing Date: The 60th day after the Issue Date.
Holder: Any holder of a Registrable Note or Registrable Notes.
Indemnified Person: See Section 7(c).
Indemnifying Person: See Section 7(c).
Indenture: The Indenture, dated as of May 19, 1999, among the
Company and First Union National Bank, as trustee, pursuant to which the Notes
are being issued, as amended or supplemented from time to time in accordance
with the terms thereof.
Initial Purchasers: See the introductory paragraph to this
Agreement.
Initial Shelf Registration Statement: See Section 3(a).
Inspectors: See Section 5(o).
Issue Date: The date on which the original Notes are sold to
the Initial Purchasers pursuant to the Purchase Agreement.
Lien: See the Indenture.
NASD: See Section 5(t).
Notes: Collectively, the $100,000,000 aggregate principal
amount of the Company's 9-5/8% Senior Subordinated Notes due 2008 issued under
the Purchase Agreement and any replacements thereof.
Participant: See Section 7(a).
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Participating Broker-Dealer: See Section 2(b).
Person: An individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government (including any agency or political
subdivision thereof).
Private Exchange: See Section 2(b).
Private Exchange Notes: See Section 2(b).
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Notes covered by such Registration Statement, and all
other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs to this
Agreement.
Records: See Section 5(o).
Registrable Notes: Each Note upon its original issuance and at
all times subsequent thereto and, if issued, each Private Exchange Note, until
in the case of any such Note or any such Private Exchange Note, as the case may
be, (i) a Registration Statement covering such Note or such Private Exchange
Note has been declared effective by the SEC and such Note or such Private
Exchange Note, as the case may be, have been disposed of in accordance with such
effective Registration Statement, (ii) such Note or such Private Exchange Note,
as the case may be, are sold in compliance with Rule 144, (iii) in the case of
any Note, such Note has been exchanged for an Exchange Note or Exchange Notes
pursuant to an Exchange Offer or (iv) such Note or such Private Exchange Note,
as the case may be, cease to be outstanding.
Registration Default: See Section 4(a).
Registration Statement: Any registration statement of the
Company, including, but not limited to, the Exchange Offer
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Registration Statement or any Shelf Registration Statement, which covers any of
the Registrable Notes pursuant to the provisions of this Agreement, including
the Prospectus, amendments and supplements to such registration statement,
including post-effective amendments, all exhibits, and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 415: Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c).
Shelf Registration Statement: See Section 3(b).
Subsequent Shelf Registration Statement: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if existent, the
trustee under any indenture governing the Exchange Notes and Private Exchange
Notes (if any).
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Underwritten registration or underwritten offering: A
registration in which securities of the Company are sold to an underwriter(s)
for reoffering to the public.
2. Exchange Offer
(a) The Company agrees to use its best efforts to file with
the SEC as soon as practicable after the Closing, but in no event later than the
Filing Date, an Exchange Offer Registration Statement with respect to an offer
to exchange (the "Exchange Offer") any and all of the Registrable Notes (other
than the Private Exchange Notes, if any) for a like aggregate principal amount
of debt securities of the Company, which are identical to the Notes (the
"Exchange Notes") (and which are entitled to the benefits of the Indenture or a
trust indenture which is substantially identical to the Indenture (other than
such changes to the Indenture or any such identical trust indenture as are
necessary to comply with any requirements of the SEC to effect or maintain the
qualification thereof under the TIA) and which, in either case, has been
qualified under the TIA), except that the Exchange Notes (other than the Private
Exchange Notes, if any) shall have been registered pursuant to an effective
registration statement under the Securities Act and will not contain terms with
respect to transfer restrictions or provisions related to matters discussed in
Section 4 hereof. The Exchange Offer will be registered under the Securities Act
on the appropriate form (the "Exchange Offer Registration Statement") and will
comply with all applicable tender offer rules and regulations under the Exchange
Act. The Company agrees to use its best efforts to (x) cause the Exchange Offer
Registration Statement to become effective under the Securities Act on or before
the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days
(or longer if required by applicable law) after the date that notice of the
Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or
prior to the 45th day following the date on which the Exchange Offer
Registration Statement is declared effective. Each Holder who participates in
the Exchange Offer will be required to represent that any Exchange Notes
received by it will be acquired in the ordinary course of its business, that
such Holder will have no arrangement or understanding with any Person to
participate in the distribution of the Exchange Notes in violation of the
provisions of the Securities Act, that such Holder is not an affiliate of any of
the Company within the meaning of Rule 405 promulgated under the Securities Act
or if it is such an affiliate, that it will comply with the registration and
prospectus delivery requirements of the Securities Act, to the extent
applicable, that, if it is a broker-dealer, such Holder will receive
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Exchange Notes for its own account in exchange for the Notes that were acquired
as a result of market-making or other trading activities and will deliver a
Prospectus in connection with any resale of such Exchange Notes, and that is not
acting on behalf of any Person who could not truthfully make the foregoing
representations. Upon consummation of the Exchange Offer in accordance with this
Section 2, the provisions of this Agreement shall continue to apply, to the
extent applicable, mutatis mutandis, solely with respect to Registrable Notes
that are Private Exchange Notes and Exchange Notes held by Participating
Broker-Dealers, and the Company shall have no further obligation to register
Registrable Notes (other than Private Exchange Notes and Exchange Notes held by
Participating Broker-Dealers) pursuant to Section 3 of this Agreement.
(b) The Company shall include within the Prospectus contained
in the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to CIBC World Markets Corp., an Initial
Purchaser, which shall contain a summary statement of the positions taken or
policies made by the staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 promulgated under the Exchange Act) of Exchange Notes
received by such broker-dealer in the Exchange Offer (a "Participating
Broker-Dealer"), whether such positions or policies have been publicly
disseminated by the staff of the SEC or such positions or policies, in the
reasonable judgment of the Initial Purchasers, represent the prevailing views of
the staff of the SEC. Such "Plan of Distribution" section shall also allow the
use of the Prospectus by all Persons subject to the prospectus delivery
requirements of the Securities Act, including all Participating Broker-Dealers,
and include a statement describing the means by which Participating
Broker-Dealers may resell the Exchange Notes.
The Company shall use its best efforts to keep the Exchange
Offer Registration Statement effective and to amend and supplement the
Prospectus contained therein, in order to permit such Prospectus to be lawfully
delivered by all Persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such Persons must comply with such
requirements in order to resell the Exchange Notes, provided that such period
shall not exceed 180 days following the consummation of the Exchange Offer (or
such longer period if extended pursuant to the last paragraph of Section 5) (the
"Applicable Period").
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If, prior to consummation of the Exchange Offer, any Initial
Purchaser holds any Notes acquired by it and having, or which are reasonably
likely to be determined to have, the status as an unsold allotment in the
initial distribution of the Notes, the Company upon the request of such Initial
Purchaser shall, simultaneously with the delivery of the Exchange Notes in the
Exchange Offer, issue and deliver to such Initial Purchaser, in exchange (the
"Private Exchange") for the Notes held by such Initial Purchaser, a like
principal amount of debt securities of the Company, that are identical in all
material respects to the Exchange Notes (the "Private Exchange Notes") (and
which are issued pursuant to the same indenture as the Exchange Notes) except
for the placement of a restrictive legend on the Private Exchange Notes. If
possible, the Private Exchange Notes shall bear the same CUSIP number as the
Exchange Notes. Interest on the Exchange Notes and Private Exchange Notes will
accrue from the last interest payment date on which interest was paid on the
Notes surrendered in exchange therefor or, if no interest has been paid on the
Notes, from the Issue Date.
In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related
documents;
(ii) utilize the services of a depositary for the
Exchange Offer with an address in the Borough of Manhattan,
The City of New York, which may be the Trustee or an affiliate
of the Trustee; and
(iii) permit Holders to withdraw tendered Notes at any
time prior to the close of business, New York time, on the
last business day on which the Exchange Offer shall remain
open.
As soon as practicable after the close of the Exchange Offer
or the Private Exchange, as the case may be, the Company shall:
(i) accept for exchange all Notes tendered and not
validly withdrawn pursuant to the Exchange Offer or the
Private Exchange;
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(ii) deliver to the Trustee for cancellation all Notes
so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver
promptly to each Holder of Notes, Exchange Notes or Private
Exchange Notes, as the case may be, equal in principal amount
to the Notes of such Holder so accepted for exchange.
The Exchange Notes and the Private Exchange Notes may be
issued under (i) the Indenture or (ii) an indenture substantially identical to
the Indenture, which in either event will provide that (1) the Exchange Notes
will not be subject to the transfer restrictions or the provisions relating to
the matters described in Section 4 hereof set forth in the Indenture and (2) the
Private Exchange Notes will be subject to the transfer restrictions but not the
provisions relating to the matters described in Section 4 hereof set forth in
the Indenture. The Indenture or such indenture shall provide that the Exchange
Notes, the Private Exchange Notes and the Notes will vote and consent together
on all matters as one class and that neither the Exchange Notes, the Private
Exchange Notes nor the Notes will have the right to vote or consent as a
separate class on any matter.
(c) If (1) prior to the consummation of the Exchange Offer,
the Company or Holders of at least a majority in aggregate principal amount of
the Registrable Notes reasonably determine in good faith that (i) the Exchange
Notes would not, upon receipt, be tradable by such Holders which are not
affiliates (within the meaning of the Securities Act) of the Company without
restriction under the Securities Act and without restrictions under applicable
state securities laws, (ii) the interests of the Holders under this Agreement
would be adversely affected by the consummation of the Exchange Offer or (iii)
after conferring with counsel, the SEC is unlikely to permit the commencement of
the Exchange Offer on or after the Effectiveness Date, (2) subsequent to the
consummation of the Private Exchange, any holder of the Private Exchange Notes
so requests or (3) the Exchange Offer not consummated within 210 days of the
Issue Date the Company (following notice from the applicable Holders in the case
of clauses (1) and (2) above) shall promptly deliver to the Holders and the
Trustee written notice thereof (the "Shelf Notice") and shall file an Initial
Shelf Registration Statement pursuant to Section 3 (provided that, in the event
and Exchange Offer is consummated within 30 days following the delivery of a
Shelf Notice, the Company shall be relieved of its obligation to file an Initial
Shelf Registration Statement pursuant to clause
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(3)). Following the delivery of a Shelf Notice to the Holders of Registrable
Notes (in the circumstances contemplated by clauses (1) and (3) of the preceding
sentence), the Company shall not have any further obligation to conduct the
Exchange Offer or the Private Exchange under this Section 2.
3. Shelf Registration Statement
If a Shelf Notice is delivered as contemplated by Section
2(c), then:
(a) Initial Shelf Registration Statement. The Company shall
prepare and file with the SEC a Registration Statement for an offering to be
made on a continuous basis pursuant to Rule 415 covering all of the Registrable
Notes (the "Initial Shelf Registration Statement"). If the Company shall have
not yet filed an Exchange Offer Registration Statement, the Company shall use
its best efforts to file with the SEC the Initial Shelf Registration Statement
on or prior to the Filing Date. In any other instance, the Company shall use its
best efforts to file with the SEC the Initial Shelf Registration Statement
within 60 days of the delivery of the Shelf Notice. The Initial Shelf
Registration Statement shall be on Form S-1 or another appropriate form
permitting registration of such Registrable Notes for resale by such Holders in
the manner or manners designated by them (including, without limitation, one or
more underwritten offerings). The Company shall not permit any securities other
than the Registrable Notes to be included in the Initial Shelf Registration
Statement or any Subsequent Shelf Registration Statement. The Company shall use
its best efforts to cause the Initial Shelf Registration Statement to be
declared effective under the Securities Act, if an Exchange Offer Registration
Statement has not yet been declared effective, on or prior to the Effectiveness
Date, or, in any other instance, as soon as practicable thereafter and in no
event later than 120 days after filing of the Initial Shelf Registration
Statement, and to keep the Initial Shelf Registration Statement continuously
effective under the Securities Act until the date which is two years from the
Issue Date (subject to extension pursuant to the last paragraph of Section 5
hereof), or such shorter period ending the earliest of when (i) all Registrable
Notes covered by the Initial Shelf Registration Statement have been sold in the
manner set forth and as contemplated in the Initial Shelf Registration Statement
or (ii) a Subsequent Shelf Registration Statement covering all of the
Registrable Notes has been declared effective under the Securities Act (the
"Effectiveness Period").
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(b) Subsequent Shelf Registration Statements. If the Initial
Shelf Registration Statement or any Subsequent Shelf Registration Statement
ceases to be effective for any reason at any time during the Effectiveness
Period, the Company shall use its best efforts to obtain the prompt withdrawal
of any order suspending the effectiveness thereof, and in any event shall within
45 days of such cessation of effectiveness amend the Shelf Registration
Statement in a manner reasonably expected to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional "shelf" Registration
Statement pursuant to Rule 415 covering all of the Registrable Notes (a
"Subsequent Shelf Registration Statement"). If a Subsequent Shelf Registration
Statement is filed, the Company shall use its best efforts to cause the
Subsequent Shelf Registration Statement to be declared effective as soon as
practicable after such filing and to keep such Registration Statement
continuously effective for a period equal to the number of days in the
Effectiveness Period less the aggregate number of days during which the Initial
Shelf Registration Statement or any Subsequent Shelf Registration Statement was
previously continuously effective. As used herein, the term "Shelf Registration
Statement" means the Initial Shelf Registration Statement and any Subsequent
Shelf Registration Statement.
(c) Supplements and Amendments. The Company shall promptly
supplement and amend the Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration Statement, if required by the Securities Act, or if requested
by the Holders of a majority in aggregate principal amount of the Registrable
Notes covered by such Registration Statement or by any underwriter(s) of such
Registrable Notes.
4. Additional Interest
(a) The Company and the Initial Purchasers agree that the
Holders of Registrable Notes will suffer damages if the Company fails to fulfill
its obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Company agrees to pay, as liquidated damages, additional interest on the
Notes ("Additional Interest") under the circumstances and to the extent set
forth below:
(i) If (a) the Exchange Offer Registration Statement or
Shelf Registration Statement is not filed within 60 days after
the Issue Date or (b) notwithstanding that the Company has
consummated or will consummate an Exchange
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Offer, the Company is required to file a Shelf Registration
Statement and such Shelf Registration Statement is not filed
on or prior to the date required by Section 3(a);
(ii) If (a) an Exchange Offer Registration Statement or
Shelf Registration Statement is not declared effective within
180 days after the Issue Date or (b) notwith-standing that the
Company has consummated or will consummate an Exchange Offer,
the Company is required to file a Shelf Registration Statement
pursuant to Section 3(a) and such Shelf Registration Statement
is not declared effective by the Commission on or prior to the
120th day following the date such Shelf Registration Statement
was filed; or
(iii) If either (a) the Company has not exchanged the
Exchange Notes for all Notes validly tendered in accordance
with the terms of the Exchange Offer on or prior to 45 days
after the date on which the Exchange Offer Registration
Statement was declared effective or (b) the Exchange Offer
Registration Statement ceases to be effective at any time
prior to the time that the Exchange Offer is consummated or
(c) if applicable, the Shelf Registration Statement ceases to
be effective (at any time that the Company is obligated to
maintain the effectiveness thereof) at any time prior to the
second anniversary of the Issue Date;
(each such event referred to in clauses (i) through (iii) above is a
"Registration Default"), the sole remedy available to Holders of the Notes will
be the immediate accrual of Additional Interest from the date on which any such
Registration Default shall have occurred as follows: the per annum interest rate
on the Notes will increase by .50% during the first 90-day period following the
occurrence of a Registration Default and until it is waived or cured; and the
per annum interest rate will increase by an additional .25% for each subsequent
90-day period during which the Registration Default remains uncured, up to a
maximum additional interest rate of 2.0% per annum, provided, that (1) upon the
filing of the Exchange Offer Registration Statement or the Initial Shelf
Registration Statement (in the case of (i) above), (2) upon the effectiveness of
the Exchange Offer Registration Statement or a Shelf Registration Statement (in
the case of (ii) above), or (3) upon the exchange of Exchange Notes for all
Notes tendered (in the case of (iii)(a) above), or upon the effectiveness of the
Exchange Offer Registration Statement which had ceased to remain effective (in
the case of (iii)(b) above), or upon the effectiveness of
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the Shelf Registration Statement which had ceased to remain effective (in the
case of (iii)(c) above), Additional Interest on the Notes as a result of such
clauses (i), (ii) or (iii) (or the relevant subclause thereof), as the case may
be, shall cease to accrue and the interest rate on the Notes will revert to the
interest rate originally borne by the Notes.
(b) Notwithstanding the foregoing, no Additional Interest will
be payable with respect to a Registration Default described in clause (iii)(c)
above, if pending a material corporate transaction, the Company issues a notice
that the registration statement, or the prospectus contained therein, is
unusable, or such notice is required under applicable securities laws to be
issued by the Company, and the aggregate number of days in any consecutive
twelve month period for which all such notices have been issued or required to
be issued has not exceeded 30 days in the aggregate.
(c) The Company shall notify the Trustee within one business
day after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Any amounts of
Additional Interest due pursuant to this Section 4 will be payable in cash
semi-annually on each April 15 and October 15 (to the Holders of record of the
Notes on the April 1 and October 1 immediately preceding such dates), commencing
with the first such date occurring after any such Additional Interest commences
to accrue and until such Registration Default is cured, by depositing with the
Trustee, in trust for the benefit of such Holders, immediately available funds
in sums sufficient to pay such Additional Interest. The amount of Additional
Interest will be determined by multiplying the applicable Additional Interest
rate by the principal amount of the Registrable Notes, multiplied by a fraction,
the numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Section 2 or 3 hereof, the Company shall:
(a) Use its best efforts to prepare and file with the
SEC, prior to the Filing Date, a Registration Statement or
Registration Statements as prescribed by Section 2 or 3, and
use its best efforts to cause each such
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Registration Statement to become effective and remain
effective as provided herein, provided that, if (1) such
filing is pursuant to Section 3, or (2) a Prospectus contained
in an Exchange Offer Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, before filing any
Registration Statement or Prospectus or any amendments or
supplements thereto, the Company shall, if requested, furnish
to and afford the Holders of the Registrable Notes covered by
such Registration Statement and each such Participating
Broker-Dealer, as the case may be, their counsel and the
managing underwriter(s), if any, a reasonable opportunity to
review copies of all such documents (including copies of any
documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed (at least 5 business
days prior to such filing). The Company shall not file any
Registration Statement or Prospectus or any amendments or
supplements thereto in respect of which the Holders must be
afforded an opportunity to review prior to the filing of such
document, if the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration
Statement, or such Participating Broker-Dealer, as the case
may be, their counsel, or the managing underwriter(s), if any,
shall reasonably object.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement
or Exchange Offer Registration Statement, as the case may be,
as may be necessary to keep such Registration Statement
continuously effective for the Effectiveness Period or the
Applicable Period, as the case may be; cause the related
Prospectus to be supplemented by any prospectus supplement
required by applicable law, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force)
under the Securities Act; and comply with the provisions of
the Securities Act and the Exchange Act applicable to it with
respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as
so supplemented and with respect to the subsequent resale of
any securities being sold by a Participating Broker-Dealer
covered by any such Prospectus. The Company shall be deemed
not to have used its best efforts to keep a Registration
Statement effective during the Applicable Period if it
voluntarily takes any action that would result in selling
Holders of the Registrable Notes covered thereby
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or Participating Broker-Dealers seeking to sell Exchange Notes
not being able to sell such Registrable Notes or such Exchange
Notes during that period unless such action is required by
applicable law or unless the Company complies with this
Agreement, including without limitation, the provisions of
clause 5(c)(v) below.
(c) If (1) a Shelf Registration Statement is filed
pursuant to Section 3, or (2) a Prospectus contained in an
Exchange Offer Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, notify the selling Holders
of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, their counsel and the
managing underwriter(s), if any, promptly (but in any event
within two business days), and confirm such notice in writing,
(i) when a Prospectus or any prospectus supplement or
post-effective amendment thereto has been filed, and, with
respect to a Registration Statement or any post-effective
amendment thereto, when the same has become effective under
the Securities Act (including in such notice a written
statement that any Holder may, upon request, obtain, without
charge, one conformed copy of such Registration Statement or
post-effective amendment thereto including financial
statements and schedules, documents incorporated or deemed to
be incorporated by reference and exhibits), (ii) of the
issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement or of any order
preventing or suspending the use of any preliminary Prospectus
or the initiation of any proceedings for that purpose, (iii)
if at any time when a Prospectus is required by the Securities
Act to be delivered in connection with sales of the
Registrable Notes or resales of Exchange Notes by
Participating Broker-Dealers the representations and
warranties of the Company contained in any agreement
(including any underwriting agreement contemplated by Section
5(n) below) cease to be true and correct, (iv) of the receipt
by the Company of any notification with respect to the
suspension of the qualification or exemption from
qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer for offer or sale in any
jurisdiction, or the initiation or threatening of any
proceeding for such purpose, (v) of the happening of any event
or any information becoming known that makes any statement
made in such Registration Statement or related Prospectus or
any document
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incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of
any changes in, or amendments or supplements to, such
Registration Statement, Prospectus or documents so that, in
the case of the Registration Statement, 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 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 light of the circumstances under which
they were made, not misleading, and (vi) of the Company's
reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) If (1) a Shelf Registration Statement is filed
pursuant to Section 3, or (2) a Prospectus contained in an
Exchange Offer Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, use its reasonable best
efforts to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending
the qualification (or exemption from qualification) of any of
the Registrable Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer, for sale in any jurisdiction,
and, if any such order is issued, to use its reasonable best
efforts to obtain the withdrawal of any such order at the
earliest possible moment.
(e) If a Shelf Registration Statement is filed pursuant
to Section 3 and if requested by the managing underwriter(s),
if any, or the Holders of a majority in aggregate principal
amount of the Registrable Notes being sold in connection with
an underwritten offering, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such
information as the managing underwriter(s), if any, or such
Holders reasonably request to be included therein and (ii)
make all required filings of such Prospectus supplement or
such post-effective amendment as soon as practicable after the
Company has received notification of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment.
-16-
(f) If (1) a Shelf Registration Statement is filed
pursuant to Section 3, or (2) a Prospectus contained in an
Exchange Offer Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, furnish to each selling
Holder of Registrable Notes who so requests in writing
(including facsimiles thereof) and to each such Participating
Broker-Dealer who so requests Iin writing (including
facsimiles thereof) and to counsel and the managing
underwriter(s), if any, without charge, one conformed copy of
the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial
statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference
and all exhibits.
(g) If (1) a Shelf Registration Statement is filed
pursuant to Section 3, or (2) a Prospectus contained in an
Exchange Offer Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, deliver to each selling
Holder of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, their counsel, and the
managing underwriter or underwriters, if any, without charge,
as many copies of the Prospectus or Prospectuses (including
each form of preliminary Prospectus) and each amendment or
supplement thereto and any documents incorporated by reference
therein as such Persons may reasonably request; and, subject
to the last paragraph of this Section 5, the Company hereby
consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as
the case may be, and the managing underwriter or underwriters
or agents, if any, and dealers (if any), in connection with
the offering and sale of the Registrable Notes covered by, or
the sale by Participating Broker-Dealers of the Exchange Notes
pursuant to, such Prospectus and any amendment or supplement
thereto.
(h) Prior to any public offering of Registrable Notes
or any delivery of a Prospectus contained in the Exchange
Offer Registration Statement by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, to use its reasonable best efforts to
register or qualify, and to cooperate with the selling
-17-
Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, the managing underwriter or
underwriters, if any, and their respective counsel in
connection with the registration or qualification of (or
exemption from such registration or qualification), such
Registrable Notes for offer and sale under the securities or
Blue Sky laws of such jurisdictions within the United States
as any selling Holder, Participating Broker-Dealer, or the
managing underwriter or underwriters, if any, reasonably
request in writing, provided that where Exchange Notes held by
Participating Broker-Dealers or Registrable Notes are offered
other than through an underwritten offering, the Company
agrees to cause its counsel to perform Blue Sky investigations
and file registrations and qualifications required to be filed
pursuant to this Section 5(h); keep each such registration or
qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept
effective and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such
jurisdictions of the Exchange Notes held by Participating
Broker-Dealers or the Registrable Notes covered by the
applicable Registration Statement; provided that the Company
shall not be required to qualify as a foreign corporation or
to execute a general consent to service of process in any
jurisdiction.
(i) If a Shelf Registration Statement is filed pursuant
to Section 3, cooperate with the selling Holders of
Registrable Notes and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be
sold, which certificates shall not bear any restrictive
legends and shall be in a form eligible for deposit with The
Depository Trust Company; and enable such Registrable Notes to
be in such denominations and registered in such names as the
managing underwriter or underwriters, if any, or Holders may
reasonably request.
(j) Use its best efforts to cause the Registrable Notes
covered by 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 thereof or
the managing underwriter or underwriters, if any, to
consummate the disposition of such Registrable Notes, except
as may be required solely as a consequence of the nature of
such selling Holder's business, in which case the Company will
cooperate in all
-18-
reasonable respects with the filing of such Registration
Statement and the granting of such approvals.
(k) If (1) a Shelf Registration Statement is filed
pursuant to Section 3, or (2) a Prospectus contained in an
Exchange Offer Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, upon the occurrence of any
event contemplated by paragraph 5(c)(v) or 5(c)(vi), as
promptly as reasonably practicable prepare and (subject to
Section 5(a)) file with the SEC, at the expense of the
Company, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be
incorporated therein by reference, or file any other required
document so that, as thereafter delivered to the purchasers of
the Registrable Notes being sold thereunder or to the
purchasers of the Exchange Notes to whom such Prospectus will
be delivered by a Participating Broker-Dealer, any such
Prospectus will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not
misleading.
(l) Use its reasonable best efforts to cause the
Registrable Notes covered by a Registration Statement or the
Exchange Notes, as the case may be, to be rated with the
appropriate rating agencies, if so requested by the Holders of
a majority in aggregate principal amount of Registrable Notes
covered by such Registration Statement or the Exchange Notes,
as the case may be, or the managing underwriter or
underwriters, if any.
(m) Prior to the effective date of the first
Registration Statement relating to the Registrable Notes, (i)
provide the Trustee with certificates for the Registrable
Notes or Exchange Notes, as the case may be, in a form
eligible for deposit with The Depository Trust Company and
(ii) provide a CUSIP number for the Registrable Notes or
Exchange Notes, as the case may be.
(n) In connection with an underwritten offering of
Registrable Notes pursuant to a Shelf Registration Statement,
enter into an underwriting agreement as is customary in
underwritten offerings of debt securities similar to the Notes
and take all such other actions as are
-19-
reasonably requested by the managing underwriter(s), if any,
in order to expedite or facilitate the registration or the
disposition of such Registrable Notes, and in such connection,
(i) make such representations and warranties to the managing
underwriter or underwriters on behalf of any underwriters,
with respect to the business of the Company and its
subsidiaries and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated
by reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings of debt
securities similar to the Notes, and confirm the same if and
when requested; (ii) obtain opinions of counsel to the Company
and updates thereof in form and substance reasonably
satisfactory to the managing underwriter or underwriters,
addressed to the managing underwriter or underwriters covering
the matters customarily covered in opinions requested in
underwritten offerings of debt securities similar to the Notes
and such other matters as may be reasonably requested by the
managing underwriter(s); (iii) obtain "cold comfort" letters
and updates thereof in form and substance reasonably
satisfactory to the managing underwriter or underwriters from
the independent certified public accountants of the Company
(and, if necessary, any other independent certified public
accountants of any subsidiary of any 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 the
managing underwriter or underwriters on behalf of any
underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings of
debt securities similar to the Notes and such other matters as
may be reasonably requested by the managing underwriter or
underwriters; and (iv) if an underwriting agreement is entered
into, the same shall contain indemnification provisions and
procedures no less favorable than those set forth in Section 7
hereof (or such other provisions and procedures acceptable to
Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement and
the managing underwriter or underwriters or agents) with
respect to all parties to be indemnified pursuant to said
Section. The above shall be done at each closing under such
underwriting agreement, or as and to the extent required
thereunder.
-20-
(o) If (1) a Shelf Registration Statement is filed
pursuant to Section 3, or (2) a Prospectus contained in an
Exchange Offer Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, make available for
inspection by any selling Holder of such Registrable Notes
being sold, or each such Participating Broker-Dealer, as the
case may be, the managing underwriter or underwriters
participating in any such disposition of Registrable Notes, if
any, and any attorney, accountant or other agent retained by
any such selling Holder or each such Participating
Broker-Dealer, as the case may be (collectively, the
"Inspectors"), at the offices where normally kept, during
reasonable business hours, all financial and other records,
pertinent corporate documents and properties of the Company
and its respective subsidiaries (collectively, the "Records")
as shall be reasonably necessary to enable them to exercise
any applicable due diligence responsibilities, and cause the
officers, directors and employees of the Company and its
respective subsidiaries to supply all information in each case
reasonably requested by any such Inspector in connection with
such Registration Statement. Records which the Company
determines, in good faith, to be confidential and any Records
which they notify the Inspectors are confidential shall not be
disclosed by the Inspectors unless (i) the disclosure of such
Records is necessary to avoid or correct a material
misstatement or material omission in such Registration
Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of
competent jurisdiction or (iii) the information in such
Records has been made generally available to the public. Each
selling Holder of such Registrable Notes and each such
Participating Broker-Dealer or underwriter will be required to
agree that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used
by it as the basis for any market transactions in the
securities of the Company or for any purpose other than in
connection with such Registration Statement unless and until
such is made generally available to the public. Each selling
Holder of such Registrable Notes and each such Participating
Broker-Dealer will be required to further agree that it will,
upon learning that disclosure of such Records is sought in a
court of competent jurisdiction, give prompt notice to the
Company and allow the Company to undertake appropriate
-21-
action to prevent disclosure of the Records deemed
confidential at its expense.
(p) Provide an indenture trustee for the Registrable
Notes or the Exchange Notes, as the case may be, and cause the
Indenture or the trust indenture provided for in Section 2(a),
as the case may be, to be qualified under the TIA not later
than the effective date of the Exchange Offer Registration
Statement or the first Registration Statement relating to the
Registrable Notes; and in connection therewith, cooperate with
the trustee under any such indenture and the Holders of the
Registrable Notes, to effect such changes to such indenture as
may be required for such indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use its
best efforts to cause such trustee to execute, all documents
as may be required to effect such changes, and all other forms
and documents required to be filed with the SEC to enable such
indenture to be so qualified in a timely manner.
(q) Comply with all applicable rules and regulations of
the SEC and make generally available to its securityholders
earnings statements satisfying the provisions of Section 11(a)
of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than 45
days after the end of any 12-month period (or 90 days after
the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which
Registrable Notes are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if
not sold to underwriters in such an offering, commencing on
the first day of the first fiscal quarter of the Company after
the effective date of a Registration Statement, which
statements shall cover said 12-month periods.
(r) Upon consummation of an Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Company, in a
form customary for underwritten offerings of debt securities
similar to the Notes, addressed to the Trustee for the benefit
of all Holders of Registrable Notes participating in the
Exchange Offer or the Private Exchange, as the case may be,
and which includes an opinion that (i) the Company has duly
authorized, executed and delivered the Exchange Notes and
Private Exchange Notes and the related indenture and (ii) each
of the Exchange Notes or the Private Exchange Notes, as the
case may be,
-22-
and related indenture constitute a legal, valid and binding
obligation of the Company, enforceable against the Company
in accordance with its respective terms (with customary
exceptions).
(s) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders
to the Company (or to such other Person as directed by the
Company) in exchange for the Exchange Notes or the Private
Exchange Notes, as the case may be, the Company shall ▇▇▇▇, or
cause to be marked, on such Registrable Notes that such
Registrable Notes are being canceled in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may
be; and, in no event shall such Registrable Notes be marked as
paid or otherwise satisfied.
(t) Cooperate with each seller of Registrable Notes
covered by any Registration Statement and the managing
underwriter(s), if any, participating in the disposition of
such Registrable Notes and their respective counsel in
connection with any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD").
(u) Use its best efforts to take all other reasonable
steps necessary to effect the registration of the Registrable
Notes covered by a Registration Statement contemplated hereby.
The Company may require each seller of Registrable Notes or
Participating Broker-Dealer as to which any registration is being effected to
furnish to the Company such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Notes or Exchange Notes
to be sold by such Participating Broker-Dealer, as the case may be, as the
Company may, from time to time, reasonably request. The Company may, at its
option, exclude from such registration the Registrable Notes of any seller or
Participating Broker-Dealer who unreasonably fails to furnish such information
within a reasonable time after receiving such request. Each seller as to which
any Shelf Registration Statement is being effected agrees to furnish promptly to
the Company all information required to be disclosed in order to make the
information previously furnished to the Company by such seller not materially
misleading.
-23-
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
to be sold by such Participating Broker-Dealer, as the case may be, that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such
Holder will forthwith discontinue disposition of such Registrable Notes covered
by such Registration Statement or Prospectus or Exchange Notes to be sold by
such Holder or Participating Broker-Dealer, as the case may be, until such
Holder's or Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(k), or until it is
advised in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto. In the event the Company shall give any such notice, each
of the Effectiveness Period and the Applicable Period shall be extended by the
number of days during such periods from and including the date of the giving of
such notice to and including the date when each seller of Registrable Notes
covered by such Registration Statement or Exchange Notes to be sold by such
Holder or Participating Broker-Dealer, as the case may be, shall have received
(x) the copies of the supplemented or amended Prospectus contemplated by Section
5(k) or (y) the Advice.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company,
whether or not the Exchange Offer Registration Statement or a Shelf Registration
Statement is filed or becomes effective, including, without limitation, (i) all
registration and filing fees (including, without limitation, (A) fees with
respect to filings required to be made with the NASD in connection with an
underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions in the United States (X) where the Holders of Registrable Notes
are located, in the case of the Exchange Notes, or (Y) as provided in Section
5(h), in the case of Registrable Notes or Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Notes or
-24-
Exchange Notes in a form eligible for deposit with The Depository Trust Company
and of printing Prospectuses if the printing of Prospectuses is reasonably
requested by the managing underwriter or underwriters, if any, or, in respect of
Registrable Notes or Exchange Notes to be sold by any Participating
Broker-Dealer during the Applicable Period, by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any Registration
Statement or of such Exchange Notes, as the case may be), (iii) messenger,
telephone and delivery expenses of the Company, (iv) fees and disbursements of
counsel for the Company and fees and disbursements of special counsel for the
sellers of Registrable Notes (subject to the provisions of Section 6(b) hereof),
(v) fees and disbursements of all independent certified public accountants
referred to in Section 5(n)(iii) (including, without limitation, the expenses of
any special audit and "cold comfort" letters required by or incident to such
performance), (vi) rating agency fees, (vii) Securities Act liability insurance,
if the Company desire such insurance, (viii) fees and expenses of the Trustee,
(ix) fees and expenses of all other Persons retained by the Company, (x)
internal expenses of the Company (including, without limitation, all salaries
and expenses of officers and employees of the Company performing legal or
accounting duties), (xi) the expense of any annual audit, (xii) if the Company
elects to list any such securities, the fees and expenses incurred in connection
with any listing of such securities to be registered on any securities exchange
and (xiii) the expenses relating to printing, word processing and distributing
all Registration Statements, underwriting agreements, securities sales
agreements, indentures and any other documents necessary in order to comply with
this Agreement.
(b) In connection with any Shelf Registration Statement
hereunder, the Company shall reimburse the Holders of the Registrable Notes
being registered in such registration for the reasonable fees and disbursements
of not more than one counsel (in addition to appropriate local counsel) chosen
by the Holders of a majority in aggregate principal amount of the Registrable
Notes to be included in such Registration Statement and other reasonable
out-of-pocket expenses of the Holders of Registrable Notes incurred in
connection with the registration of the Registrable Notes. The Company shall not
have any obligation to pay any underwriting fees, discounts or commissions
attributable to the sale of Registrable Notes.
-25-
7. Indemnification
(a) The Company agrees to indemnify and hold harmless each
Holder of Registrable Notes and each Participating Broker-Dealer selling
Exchange Notes during the Applicable Period, the officers and directors of each
such Person, and each Person, if any, who controls any such Person within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act (each, a "Participant"), from and against any and all losses, claims,
damages and liabilities (including, without limitation, the reasonable legal
fees and other expenses actually incurred in connection with any suit, action or
proceeding or any claim asserted) caused by, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) or Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by, arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Participant or underwriter furnished
to the Company in writing by such Participant or underwriter expressly for use
therein; provided that the foregoing indemnity with respect to any preliminary
Prospectus shall not inure to the benefit of any Participant or underwriter (or
to the benefit of any person controlling such Participant or underwriter) from
whom the person asserting any such losses, claims, damages or liabilities
purchased Registrable Notes or Exchange Notes if such untrue statement or
omission or alleged untrue statement or omission made in such preliminary
Prospectus is eliminated or remedied in the related Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) and a copy of the related Prospectus (as so amended or supplemented)
shall have been furnished to such Participant or underwriter at or prior to the
sale of such Registrable Notes or Exchange Notes, as the case may be, to such
person or at a time the Company had notified persons under the last paragraph of
Section 5 hereof to cease using such Registration Statement or Prospectus.
-26-
(b) Each Participant will be required to agree, severally and
not jointly, to indemnify and hold harmless the Company, its directors and
officers who sign the Registration Statement and each Person who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to each Participant, but only (i) with reference to information relating to such
Participant furnished to the Company in writing by such Participant expressly
for use in any Registration Statement or Prospectus, any amendment or supplement
thereto, or any preliminary prospectus or (ii) with respect to any untrue
statement or representation made by such Participant in writing to the Company.
The liability of any Participant under this paragraph shall in no event exceed
the proceeds received by such Participant from sales of Registrable Notes or
Exchange Notes giving rise to such obligations.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any Person in respect of which indemnity may be sought pursuant
to either of the two preceding paragraphs, such Person (the "Indemnified
Person") shall promptly notify the Person against whom such indemnity may be
sought (the "Indemnifying Person") in writing, and the Indemnifying Person, upon
request of the Indemnified Person, shall retain counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding; provided, however, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability which it
may have hereunder or otherwise (unless and to the extent that it did not
otherwise learn of such action or claim and such omission results in the
forfeiture by the Indemnifying Person of substantial rights and defenses). In
any such proceeding, any Indemnified Person shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed in writing to the contrary, (ii)
the Indemnifying Person has failed to retain counsel reasonably satisfactory to
the Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and the Indemnified Person shall have been advised by counsel
-27-
that representation of both parties by the same counsel would be inappropriate
under applicable standards of professional conduct due to differing interests
between them. It is understood that, unless there exists a conflict among
Indemnified Persons, the Indemnifying Person shall not, in connection with any
one such proceeding or separate but substantially similar related proceeding in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Indemnified Persons, and that
all such fees and expenses shall be reimbursed promptly as they are incurred.
Any such separate firm for the Participants and such control Persons of
Participants shall be designated in writing by Participants who sold a majority
of Registrable Notes and Exchange Notes sold by all such Participants and any
such separate firm for the Company, its directors, its officers and such control
Persons of the Company shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its prior written consent (which consent shall not be
unreasonably withheld or delayed), but if settled with such consent or if there
be a final non-appealable judgment for the plaintiff for which the Indemnified
Person is entitled to indemnification pursuant to this Agreement, the
Indemnifying Person agrees to indemnify and hold harmless each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the Indemnified
Person for reasonable fees and expenses actually incurred by counsel as
contemplated by the third sentence of this paragraph, the Indemnifying Person
agrees that it shall be liable for any settlement of any proceeding effected
without its consent if (i) such settlement is entered into more than 30 days
after receipt by such Indemnifying Person of the aforesaid request and (ii) such
Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement; provided,
however, that the Indemnifying Person shall not be liable for any settlement
effected without its consent pursuant to this sentence if the Indemnifying
Person is contesting, in good faith, the request for reimbursement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement or compromise of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party, unless such settlement includes an unconditional
-28-
written release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are
the subject matter of such proceeding.
(d) If the indemnification provided for in the first and
second paragraphs of this Section 7 is for any reason unavailable to, or
insufficient to hold harmless, an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraphs, in lieu of indemnifying such Indemnified Person
thereunder and in order to provide for just and equitable contribution, shall
contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect (i) the relative benefits received by the Indemnified
Person or Persons on the one hand and the Indemnified Person or Persons on the
other from the offering of the New Notes or (ii) if the allocation provided by
the foregoing clause (i) is not permitted by applicable law, not only such
relative benefits but also the relative fault of the Indemnifying Person or
Persons on the one hand and the Indemnified Person or Persons on the other in
connection with the statements or omissions or alleged statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable considerations. The
relative fault of the parties 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 on the one hand or such Participant or such other
Indemnified Person, as the case may be, on the other, the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The parties agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Participants were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses actually
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incurred by such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall a Participant be required to contribute any amount
in excess of the amount by which proceeds received by such Participant from
sales of Registrable Notes or Exchange Notes, as the case may be, exceeds the
amount of any damages that such Participant has otherwise been required to pay
or has paid by reason of such untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(f) The indemnity and contribution agreements contained in
this Section 7 will be in addition to any liability which the Indemnifying
Persons may otherwise have to the Indemnified Persons referred to above.
8. Rules 144 and 144A
The Company covenants that, so long as any Registrable Notes
remain outstanding, it will file the reports required to be filed by it under
the Securities Act and the Exchange Act and the rules and regulations adopted by
the SEC thereunder in a timely manner and, if at any time the Company is not
required to file such reports, it will, upon the request of any Holder of
Registrable Notes, make publicly available other information of a like nature so
long as necessary to permit sales pursuant to Rule 144 or Rule 144A. The Company
further covenants that so long as any Registrable Notes remain outstanding to
make available to any Holder of Registrable Notes in connection with any sale
thereof, the information required by Rule 144A(d)(4) under the Securities Act in
order to permit resales of such Registrable Notes pursuant to Rule 144A (or any
similar rule or regulation hereafter adopted by the SEC) unless at the time the
Registrable Notes are not fully salable under Rule 144 or any successor
provision.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Holders of a majority in aggregate
principal amount of such
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Registrable Notes included in such offering and shall be reasonably acceptable
to the Company.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
10. Miscellaneous
(a) Remedies. In the event of a breach by the Company of any
of its obligations under this Agreement, each Holder of Registrable Notes, in
addition to being entitled to exercise all rights provided herein, in the
Indenture or, in the case of the Initial Purchasers, in the Purchase Agreement
or granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by it of any of the provisions of this Agreement and hereby further
agrees that, in the event of any action for specific performance in respect of
such breach, it shall waive the defense that a remedy at law would be adequate.
The provisions of this Section 10(a) shall not apply with respect to the
occurrence of any event which requires the payment of Additional Interest by the
Company.
(b) Enforcement. The Trustee shall be authorized to enforce
the provisions of this Agreement for the ratable benefit of the Holders.
(c) No Inconsistent Agreements. The Company has not, as of the
date hereof, and the Company shall not, after the date of this Agreement, enter
into any agreement with respect to any of its securities that is inconsistent
with the rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The Company has not entered or
will not enter into any agreement with respect to any of its securities which
will grant to any Person piggy-back rights with respect to a Registration
Statement required to be filed under this Agreement.
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(d) Adjustments Affecting Registrable Notes. The Company shall
not, directly or indirectly, take any action with respect to the Registrable
Notes as a class that would adversely affect the ability of the Holders of
Registrable Notes to include such Registrable Notes in a registration undertaken
pursuant to this Agreement.
(e) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise than with the
prior written consent of (A) the Holders of not less than a majority of the then
outstanding Registrable Notes and (B) in circumstances that would materially
adversely affect the Participating Broker-Dealers, the Participating
Broker-Dealers holding not less than a majority in aggregate principal amount of
the Exchange Notes held by all Participating Broker-Dealers; provided, however,
that Section 7 and this Section 10(e) may not be amended, modified or
supplemented without the prior written consent of each Holder and each
Participating Broker-Dealer (including any person who was a Holder or
Participating Broker-Dealer of Registrable Notes or Exchange Notes, as the case
may be, disposed of pursuant to any Registration Statement). Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of Registrable
Notes whose securities are being sold pursuant to a Registration Statement and
that does not directly or indirectly affect, impair, limit or compromise the
rights of other Holders of Registrable Notes may be given by Holders of at least
a majority of the Registrable Notes being sold by such Holders pursuant to such
Registration Statement; provided, however, that the provisions of this sentence
may not be amended, modified or supplemented except in accordance with the
provisions of the immediately preceding sentence.
(f) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
1. if to a Holder of the Registrable Notes or any
Participating Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, on the records of the registrar
under the Indenture with a copy in like manner to the Initial Purchasers as
follows:
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CIBC WORLD MARKETS CORP.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Finance Department
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
2. if to the Initial Purchaser, at the addresses specified in
Section 11(f)(1);
3. if to the Company, at the addresses as follows:
FAIRFIELD MANUFACTURING COMPANY, INC.
▇.▇. ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
with copies to:
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; one business
day after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee
under the Indenture at the address specified in such Indenture.
(g) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation
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and without the need for an express assignment, subsequent Holders of
Registrable Notes.
(h) 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.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(k) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction.
(l) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a final
expression of their agreement, and is intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein.
(m) Notes Held by the Company or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Company or its affiliates (as
such term is defined in Rule 405 under the Securities Act) shall not be counted
in determining whether such consent or approval was given by the Holders of such
required percentage.
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
FAIRFIELD MANUFACTURING COMPANY, INC.
By:
---------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
CIBC WORLD MARKETS CORP.
FLEET SECURITIES, INC.
ING BARING ▇▇▇▇▇▇ ▇▇▇▇ LLC
▇▇▇▇▇▇▇▇ & CO. INC.
By: CIBC WORLD MARKETS CORP.
By:
-----------------------------
Name:
Title: