EXHIBIT 2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of September 12, 1996, is
made and entered into by ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a Delaware corporation (the
"Company"), DI Associates, L.P., a Delaware limited partnership, and KKR
Partners II, L.P., a Delaware limited partnership (collectively, the
"Partnerships").
1. BACKGROUND. The Company has entered into an Agreement and Plan of
Merger, dated as of September 12, 1996, by and among ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Alaska Acquisition Corp. and Duracell International Inc. (the "Merger
Agreement"), which contemplates that each outstanding share of common stock of
Duracell International Inc. (including such shares held by the Partnerships)
will be converted into the right to receive the number of shares of the
Company's Common Stock, par value $1.00 per share (the "Common Stock"),
specified in the Merger Agreement. This Agreement shall become effective upon
the issuance of the Common Stock to be issued pursuant to the Merger Agreement.
2. DEFINITIONS.
As used in this Agreement, the following capitalized terms shall have
the following respective meanings:
EXCHANGE ACT - The Securities Exchange Act of 1934, as amended.
HOLDER - Subject to Section 8(c) hereof, any party hereto (other than
the Company) and any holder of Registrable Securities who agrees in writing
to be bound by the provisions of this Agreement.
PERSON - Any individual, partnership, joint venture, corporation,
trust, unincorporated organization or government or any department or
agency thereof.
REGISTRABLE SECURITIES - Any Common Stock issued pursuant to the
Merger Agreement and any Common Stock or other securities which may be
issued or distributed in respect thereof by way of stock dividend or stock
split or other distribution, recapitalization or reclassification. As to
any particular Registrable Securities, once issued such Securities shall
cease to be Registrable Securities when (i) a registration statement with
respect to the sale of such Securities shall have become effective under
the Securities Act and such Securities shall have been disposed of in
accordance with such registration statement, (ii) they shall have been
distributed to the public pursuant to Rule 144 (or any successor provision)
under the Securities Act, (iii) they shall have been otherwise transferred,
new certificates for them not bearing a legend restricting further transfer
shall have been delivered by the Company and subsequent disposition of them
shall not require registration or qualification of
them under the Securities Act or any state securities or blue sky law then
in force, (iv) they shall have ceased to be outstanding, (v) when sold or
otherwise transferred to, any Person who is not a Holder or (vi) the first
date on which the aggregate market value of such Registrable Securities is
less than $250,000,000.
REGISTRATION EXPENSES - Any and all expenses incident to performance
of or compliance with this Agreement, including, without limitation, (i)
all SEC and stock exchange or National Association of Securities Dealers,
Inc. registration and filing fees, (ii) all fees and expenses of complying
with securities or blue sky laws (including fees and disbursements of
counsel for the underwriters in connection with blue sky qualifications of
the Registrable Securities), (iii) all printing, messenger and delivery
expenses, (iv) all fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange pursuant
to clause (viii) of Section 5, (v) the fees and disbursements of counsel
for the Company and of its independent public accountants, including the
expenses of any special audits and/or "cold comfort" letters required by or
incident to such performance and compliance, (vi) the reasonable fees and
disbursements of one counsel selected by the Holders of a majority of the
Registrable Securities being registered to represent all Holders of the
Registrable Securities being registered in connection with each such
registration, and (vii) any fees and disbursements of underwriters
customarily paid by the issuers or sellers of securities, including
liability insurance if the Company so desires or if the underwriters so
require, and the reasonable fees and expenses of any special experts
retained by the Company in connection with the requested registration, but
excluding underwriting discounts and commissions, fees and expenses of
counsel for the underwriters (except as otherwise set forth in clause (ii)
above) and transfer taxes, if any.
SECURITIES ACT - The Securities Act of 1933, as amended.
SEC - The Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act or the Exchange Act.
3. INCIDENTAL REGISTRATIONS.
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES. If the Company at any
time after the date hereof until December 31, 2002 proposes to register its
Common Stock under the Securities Act (other than a registration on Form S-4 or
S-8, or any successor or other forms promulgated for similar purposes), whether
or not for sale for its own account, pursuant to a registration statement on
which it is permissible to register Registrable Securities for sale to the
public under the Securities Act, it will each such time give prompt written
notice to all Holders of Registrable
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Securities of its intention to do so and of such Holders' rights under this
Section 3. Upon the written request of any such Holder made within 15 days
after the receipt of any such notice (which request shall specify the
Registrable Securities intended to be disposed of by such Holder), the Company
will use its reasonable efforts to effect the registration under the Securities
Act of all Registrable Securities which the Company has been so requested to
register by the Holders thereof; PROVIDED that (i) if, at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the registration statement filed in connection with such
registration, the Company (or any stockholder of the Company in the case of a
demand registration by such stockholder) shall determine for any reason not to
proceed with the proposed registration of the securities to be sold by it, the
Company may, at its election, give written notice of such determination to each
Holder of Registrable Securities and, thereupon, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses in
connection therewith), and (ii) if such registration involves an underwritten
offering, all Holders of Registrable Securities requesting to be included in the
registration must sell their Registrable Securities to the underwriters selected
by the Company (or by any stockholders other than the Holders entitled to select
the underwriters) on the same terms and conditions as apply to the other sellers
included in such registration, with such differences, including any with respect
to indemnification and liability insurance, as may be customary or appropriate
in combined primary and secondary offerings. If a registration requested
pursuant to this Section 3(a) involves an underwritten public offering, any
Holder of Registrable Securities requesting to be included in such registration
may elect, in writing prior to the effective date of the registration statement
filed in connection with such registration, not to register such securities in
connection with such registration.
(b) EXPENSES. The Company will pay all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to this Section 3.
(c) PRIORITY IN INCIDENTAL REGISTRATIONS. If a registration pursuant
to this Section 3 involves an underwritten offering and the managing underwriter
advises the Company in writing that, in its opinion, the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering, so as to be likely to have an adverse effect on the
successful marketing of such offering (including the price at which such
securities can be sold), then the Company will include in such registration (i)
first, 100% of the securities the Company proposes to sell, (ii) second, up to
100% of the securities requested to be registered by any stockholder exercising
a demand registration right and (iii) third, to the extent of the number of
Registrable Securities (and shares of Common Stock held by other Persons with
similar registration
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rights) requested to be included in such registration which, in the opinion of
such managing underwriter, can be sold without having the adverse effect
referred to above, the number of Registrable Securities (and such shares of
Common Stock) which the Holders (and such other Persons) have requested to be
included in such registration, such amount to be allocated pro rata among all
requesting Holders (and such other Persons) on the basis of the relative number
of shares of Registrable Securities then held by each such Holder (or shares of
Common Stock then held by such other Person) (provided that any shares thereby
allocated to any such Holder (or such other Person) that exceed such Holder's
(or such other Person's) request will be reallocated among the remaining
requesting Holders (and such other Persons) in like manner).
4. REGISTRATION ON REQUEST.
(a) REQUEST BY HOLDERS. At any time, and from time to time, until
December 31, 2000, upon the written request of any Holder or Holders requesting
that the Company effect the registration under the Securities Act of all or part
of such Holder's or Holders' Registrable Securities (constituting in the
aggregate a number of shares having an aggregate market value of at least
$325,000,000 or such lesser number of Registrable Securities then outstanding)
and specifying the intended method of disposition thereof, the Company will
promptly give written notice of such requested registration to all other Holders
of Registrable Securities, and thereupon will, as expeditiously as possible, use
its reasonable efforts to effect the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so
requested to register by such Holder or Holders; and
(ii) all other Registrable Securities which the Company has been
requested to register by any other Holder thereof by written request given
to the Company within 15 days after the giving of such written notice by
the Company (which request shall specify the intended method of disposition
of such Registrable Securities),
so as to permit the disposition (in accordance with the intended method thereof
as aforesaid) of the Registrable Securities so to be registered; PROVIDED, that
the Company shall not be obligated to file a registration statement relating to
any registration request under this Section 4(a) (i) unless the aggregate
requests by the Holder or Holders for such registration cover a number of shares
having an aggregate market value of at least $325,000,000 (or such lesser
number of Registrable Securities then outstanding), or (ii) within a period of
180 days after the effective date of any other registration statement relating
to (A) any registration request under this Section 4(a) or (B) any registration
effected under Section 3; PROVIDED, FURTHER, the
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Company shall not be required to effect more than five (5) requested
registrations pursuant to this Section 4.
(b) EXPENSES. The Company will pay all Registration Expenses in
connection with the registrations of Registrable Securities pursuant to this
Section 4 upon the written request of any of the Holders.
(c) EFFECTIVE REGISTRATION STATEMENT. A registration requested
pursuant to this Section 4 will not be deemed to have been effected unless it
has become effective; PROVIDED, that if, within 60 days after it has become
effective, the offering of Registrable Securities pursuant to such registration
is interfered with by any stop order, injunction or other order or requirement
of the SEC or other governmental agency or court, such registration will be
deemed not to have been effected.
(d) SELECTION OF UNDERWRITERS. If a requested registration pursuant
to this Section 4 involves an underwritten offering, the Holders of a majority
of the Registrable Securities to be registered thereunder shall have the right
to select the investment banker or bankers and managers to administer the
offering; PROVIDED, HOWEVER, that such investment banker or bankers and managers
shall be reasonably satisfactory to the Company.
(e) PRIORITY IN REQUESTED REGISTRATIONS. If a requested registration
pursuant to this Section 4 involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion, the number of
securities requested to be included in such registration (including securities
of the Company or other Persons which are not Registrable Securities) exceeds
the number which can be sold in such offering, so as to be likely to have an
adverse effect on the successful marketing of such offering (including the price
at which such securities can be sold), the Company will include in such
registration only the Registrable Securities requested to be included in such
registration. In the event that the number of Registrable Securities requested
to be included in such registration exceeds the number which, in the opinion of
such managing underwriter, can be sold without having the adverse effect
referred to above, the number of such Registrable Securities to be included in
such registration shall be allocated pro rata among all requesting Holders on
the basis of the relative number of shares of Registrable Securities then held
by each such Holder (provided that any shares thereby allocated to any such
Holder that exceed such Holder's request shall be reallocated among the
remaining requesting Holders in like manner). In the event that the number of
Registrable Securities requested to be included in such registration is less
than the number which, in the opinion of the managing underwriter, can be sold
without having the adverse effect referred to above, the Company may include in
such registration the securities the Company (or any other stockholder) proposes
to sell up to the number of securities
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that, in the opinion of the underwriter, can be sold without having the adverse
effect referred to above.
(f) ADDITIONAL RIGHTS. If the Company at any time grants to any other
Holders of Common Stock any rights to request the Company to effect the
registration under the Securities Act of any such shares of Common Stock on
terms more favorable to such Holders than the terms set forth in this Section 4,
the terms of this Section 4 shall be deemed amended or supplemented to the
extent necessary to provide the Holders such more favorable rights and benefits.
(g) COMPANY'S ABILITY TO POSTPONE. (i) If, upon receipt of a
registration request pursuant to Section 4(a), the Company is advised in writing
by a nationally recognized investment banking firm selected by the Company that,
in such firm's opinion, a registration at the time and on the terms requested
would adversely affect any public offering of securities of the Company by the
Company (other than in connection with employee benefit and similar plans) or by
or on behalf of any shareholder of the Company exercising a demand registration
right (collectively, a "Company Offering") with respect to which the Company has
commenced preparations for a registration or received notice of the exercise of
such demand registration right prior to the receipt of a registration request
pursuant to Section 4(a) and the Company furnishes the Holders with a
certificate signed by the Chief Executive Officer or Chief Financial Officer of
the Company to such effect (the "Transaction Delay Notice") promptly after such
request, the Company shall not be required to effect a registration pursuant to
Section 4(a) until the earliest of (A) 30 days after the completion of such
Company Offering, (B) promptly after the abandonment of such Company Offering or
(C) 120 days after the date of the Transaction Delay Notice; PROVIDED, HOWEVER,
that in any event the Company shall not be required to effect any registration
prior to the termination, waiver or reduction of any "blackout period" required
by the underwriters to be applicable to the Holders or the Company, if any, in
connection with any Company Offering.
(ii) If upon receipt of a registration request pursuant to Section
4(a) or while a registration request pursuant to Section 4(a) is pending, the
Company determines in its good faith judgment after consultation with its
principal securities counsel or outside securities counsel that the filing of a
registration statement would require disclosure of material information which
the Company has a bona fide business purpose for preserving as confidential and
the Company provides the Holders written notice (the "Information Delay Notice"
and, together with the Transaction Delay Notice, the "Delay Notice") thereof
promptly after the Company makes such determination, which shall be made
promptly after the receipt of any request, the Company shall not be required to
comply with its obligations under Section 4(a) until the earlier of (A) the date
upon which such material information
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is disclosed to the public or ceases to be material or (B) 90 days after the
Holders' receipt of such notice.
(iii) Notwithstanding the foregoing provisions of this Section 4(h),
the Company shall be entitled to serve only one Delay Notice (i) within any
period of 180 consecutive days or (ii) with respect to any two consecutive
registrations requested pursuant to Section 4(a).
(iv) At any time when a registration statement effected pursuant to
Section 4(a) hereunder relating to Registrable Securities is effective and a
prospectus relating thereto is required to be delivered under the Securities Act
within the appropriate period mentioned in clause (ii) of Section 5 hereunder,
that the Company becomes aware that the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing, to the extent that the amendment or supplement to such prospectus
necessary to correct such untrue statement of a material fact or omission to
state a material fact would require disclosure of material information which the
Company has a bona fide business purpose for preserving as confidential and the
Company provides the Holders written notice thereof promptly after the Company
makes such determination, the Holders shall suspend sales of Registrable
Securities pursuant to such registration statement and the Company shall not be
required to comply with its obligations under Section 5(vi) until the earlier of
(A) the date upon which such material information is disclosed to the public or
ceases to be material or (B) 90 days after the Holders' receipt of such written
notice. If the Holders' disposition of Registrable Securities is discontinued
pursuant to the foregoing sentence, unless the Company thereafter extends the
effectiveness of the registration statement to permit dispositions of
Registrable Securities by the Holders for an aggregate of 60 days, the
registration statement shall not be counted for purposes of determining the
number of registrations permitted under Section 4 hereof.
5. REGISTRATION PROCEDURES. If and whenever the Company is required
to use its reasonable efforts to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in this Agreement,
the Company will, as expeditiously as possible:
(i) prepare and, in any event within 60 days after the end of the
period within which a request for registration may be given to the Company,
file with the SEC a registration statement with respect to such Registrable
Securities and use its reasonable efforts to cause such registration
statement to become effective; PROVIDED, HOWEVER, that the Company may
discontinue any registration of its securities which is being effected
pursuant to Section 3 at any time prior to the
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effective date of the registration statement relating thereto;
(ii) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for a
period not in excess of 60 days (or such shorter period during which the
distribution of securities thereunder continues) and to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement (so long as such
intended methods of disposition are commercially reasonable); PROVIDED,
that before filing a registration statement or prospectus, or any
amendments or supplements thereto, the Company will furnish to one counsel
selected by the Holders of a majority of the Registrable Securities covered
by such registration statement to represent all Holders of Registrable
Securities covered by such registration statement, copies of all documents
proposed to be filed, which documents will be subject to the review of such
counsel;
(iii) furnish to each seller of such Registrable Securities such
number of copies of such registration statement and of each amendment and
supplement thereto (in each case including all exhibits), such number of
copies of the prospectus included in such registration statement (including
each preliminary prospectus and summary prospectus), in conformity with the
requirements of the Securities Act, and such other documents as such seller
may reasonably request in order to facilitate the disposition of the
Registrable Securities by such seller;
(iv) use its reasonable efforts to register or qualify such
Registrable Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as each seller
shall reasonably request, and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller, except that the Company shall not for any
such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction where, but for the requirements of this
clause (iv), it would not be obligated to be so qualified, to subject
itself to taxation in any such jurisdiction, or to consent to general
service of process in any such jurisdiction;
(v) use its reasonable efforts to cause such Registrable Securities
covered by such registration statement
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to be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Registrable Securities;
(vi) notify each seller of any such Registrable Securities covered by
such registration statement, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act within the appropriate
period mentioned in clause (ii) of this Section 5, of the Company's
becoming aware that the prospectus included in such registration statement,
as then in effect, includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances
then existing, and at the request of any such seller, prepare and furnish
to such seller a reasonable number of copies of an amended or supplemental
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not
include 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 not misleading in the light of the circumstances then existing;
(vii) otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable (but not more than
eighteen months) after the effective date of the registration statement, an
earnings statement which shall satisfy the provisions of Section 11(a) of
the Securities Act and the rules and regulations promulgated thereunder;
(viii) use its reasonable efforts to list such Registrable Securities
on any securities exchange on which the Common Stock is then listed, if
such Registrable Securities are not already so listed and if such listing
is then permitted under the rules of such exchange, and to provide a
transfer agent and registrar for such Registrable Securities covered by
such registration statement not later than the effective date of such
registration statement;
(ix) enter into such customary agreements (including an underwriting
agreement in customary form) and take such other actions as sellers of a
majority of shares of such Registrable Securities or the underwriters, if
any, reasonably request in order to expedite or facilitate the disposition
of such Registrable Securities;
(x) use its reasonable efforts to obtain a "cold comfort" letter or
letter from the Company's independent public accountants in customary form
and covering matters of the type customarily covered by "cold comfort"
letters as the
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seller or sellers of a majority of shares of such Registerable Securities
shall reasonably request (provided that Registrable Securities constitute
at least 25% of the securities covered by such registration statement);
(xi) make available for inspection by representatives of the sellers
of such Registrable Securities covered by such registration statement, by
any underwriter participating in any disposition to be effected pursuant to
such registration statement and by any attorney, accountant or other agent
retained by such sellers or any such underwriter, all pertinent financial
and other records, pertinent corporate documents and properties of the
Company, and cause all of the Company's officers, directors and employees
to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such
registration statement (subject to each party referred to in this clause
(xi) entering into customary confidentiality agreements in a form
reasonably acceptable to the Company); and
(xii) use its reasonable efforts (taking into account the interests
of the Company) to make available the senior executive officers of the
Company to participate in customary "road show" presentations that may be
reasonably requested by the Holders and the managing underwriter in any
underwritten offering; provided that the participation of such senior
executive officers shall not interfere with the conduct of their duties to
the Company.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish the Company with such
information regarding such seller and pertinent to the disclosure requirements
relating to the registration and the distribution of such securities as the
Company may from time to time reasonably request in writing.
Each Holder of Registrable Securities agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
clause (vi) of this Section 5, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such Holder's receipt of the copies
of the supplemented or amended prospectus contemplated by clause (vi) of this
Section 5, and, if so directed by the Company, such 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 Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the period mentioned in clause (ii) of this
Section 5 shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to clause (vi) of this
Section 5 and including the date when each seller of Registrable Securities
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covered by such registration statement shall have received the copies of the
supplemented or amended prospectus contemplated by clause (vi) of this
Section 5.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. In the event of any registration
of any securities of the Company under the Securities Act pursuant to Section 3
or 4, the Company will, and it hereby does, indemnify and hold harmless, to the
extent permitted by law, the seller of any Registrable Securities covered by
such registration statement, each affiliate of such seller and their respective
directors and officers or general and limited partners (and the directors,
officers, affiliates and controlling Persons thereof), each other Person who
participates as an underwriter in the offering or sale of such securities and
each other Person, if any, who controls such seller or any such underwriter
within the meaning of the Securities Act (collectively, the "Indemnified
Parties"), against any and all losses, claims, damages or liabilities, joint or
several, and expenses to which such seller, any such director or officer or
general or limited partner or affiliate or any such underwriter or controlling
Person may become subject under the Securities Act, common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof, whether or not such Indemnified Party is a party
thereto) arise out of or are based upon (a) any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act, any
preliminary, final or summary prospectus contained therein, or any amendment or
supplement thereto, or (b) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing, and the
Company will reimburse such Indemnified Party for any legal or any other
expenses reasonably incurred by it in connection with investigating or defending
any such loss, claim, liability, action or proceeding; PROVIDED, that the
Company shall not be liable to any Indemnified Party in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in such
registration statement or amendment or supplement thereto or in any such
preliminary, final or summary prospectus in reliance upon and in conformity with
written information with respect to such seller furnished to the Company by such
seller for use in the preparation thereof; and PROVIDED, FURTHER, that the
Company will not be liable to any Indemnified Party (including any person
controlling such Indemnified Party), who is obligated to deliver a prospectus in
transactions in a security as to which a registration statement has been filed
pursuant to the Securities Act, under the indemnity agreement in this Section
6(a) with respect to any preliminary prospectus or the final prospectus or
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the final prospectus as amended or supplemented, as the case may be, to the
extent that any such loss, claim, damage or liability of such Indemnified Party
results from the fact that such Registrable Securities were sold to a person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the final prospectus (including any documents incorporated
by reference therein) or of the final prospectus as then amended or supplemented
(including any documents incorporated by reference therein), whichever is most
recent, if the Company has previously furnished copies thereof to such
Indemnified Party. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such seller or any
Indemnified Party and shall survive the transfer of such securities by such
seller.
(b) INDEMNIFICATION BY THE SELLERS. In the event of any registration
of any securities of the Company under the Securities Act pursuant to Section 3
or 4, each prospective seller of Registrable Securities and any underwriter
shall indemnify and hold harmless (in the same manner and to the same extent as
set forth in subdivision (a) of this Section 6) the Company and all other
prospective sellers and any underwriter, as the case may be, with respect to any
statement or alleged statement in or omission or alleged omission from such
registration statement, any preliminary, final or summary prospectus contained
therein, or any amendment or supplement, if such statement or alleged statement
or omission or alleged omission was made in reliance upon and in conformity with
written information with respect to such seller or underwriter furnished to the
Company by such seller or underwriter for use in the preparation of such
registration statement, preliminary, final or summary prospectus or amendment or
supplement, or a document incorporated by reference into any of the foregoing.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any of the prospective
sellers, or any of their respective affiliates, directors, officers or
controlling Persons and shall survive the transfer of such securities by such
seller.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified
party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 6, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action; PROVIDED, that the failure of the
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of this
Section 6, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party, the indemnifying party will be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified
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party, and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will not
be liable to such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other than
reasonable costs of investigation, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim (in which event such indemnified
party and any other indemnified party to which such conflict of interest applies
shall be reimbursed for the reasonable expenses incurred in connection with
retaining one separate legal counsel for all such indemnified parties in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances). No indemnifying party will, without the prior
written consent of the indemnified party (which consent shall not be
unreasonably withheld), consent to entry of any judgment or enter into any
settlement in respect of any such indemnifiable claim, unless any such judgment
or settlement includes as an unconditional term thereof, the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect to such claim or litigation.
(d) OTHER INDEMNIFICATION. Indemnification similar to that specified
in the preceding subdivisions of this Section 6 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities with
respect to any required registration or other qualification of securities under
any federal or state law or regulation or governmental authority other than the
Securities Act.
(e) NON-EXCLUSIVITY. The obligations of the parties under this
Section 6 shall be in addition to any liability which any party may otherwise
have to any other party.
7. RULE 144. If the Company shall have filed a registration statement
pursuant to the requirements of Section 12 of the Exchange Act or a registration
statement pursuant to the requirements of the Securities Act, the Company
covenants that 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 (or, if the Company is not required to file such reports, it
will, upon the request of any Holder of Registrable Securities, make publicly
available such information), and it will take such further action as any Holder
of Registrable Securities may reasonably request, all to the extent required
from time to time to enable such Holder to sell shares of Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or (ii) any similar rule or regulation hereafter
adopted by the SEC. Upon the request of any Holder of Registrable Securities,
the Company will deliver to such Holder a written statement as to
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whether it has complied with such requirements. Notwithstanding anything
contained in this Section 7, the Company may deregister under Section 12 of the
Exchange Act if it then is permitted to do so pursuant to the Exchange Act and
the rules and regulations thereunder.
8. MISCELLANEOUS.
(a) HOLDBACK AGREEMENT. If any registration described in Section 3 or
4 hereof shall be in connection with an underwritten public offering, each
Holder of Registrable Securities agrees (whether or not such Holder participates
in such registration) not to effect any public sale or distribution, including
any sale pursuant to Rule 144 under the Securities Act, or any other sale,
pledge, assignment or other transfer or disposition of any equity securities of
the Company, or of any security convertible into or exchangeable or exercisable
for any equity security of the Company (in each case, other than as part of such
underwritten public offering), within 7 days before or 90 days (or such lesser
period as the managing underwriters may permit) after the effective date of such
registration, and the Company hereby also so agrees.
(b) AMENDMENTS AND WAIVERS. This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the Holders of
a majority of the Registrable Securities then outstanding. Each Holder of any
Registrable Securities at the time or thereafter outstanding shall be bound by
any consent authorized by this Section 8(b), whether or not such Registrable
Securities shall have been marked to indicate such consent.
(c) SUCCESSORS, ASSIGNS AND TRANSFEREES. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the parties hereto other than the Company may only be assigned
to, and shall also be for the benefit of and enforceable by, any subsequent
Holder of any Registrable Securities, which is an affiliate of the Partnerships,
subject to the provisions contained herein.
(d) NOTICES. All notices and other communications provided for
hereunder shall be in writing and shall be sent by first class mail, telex,
telecopier or hand delivery:
(i) if to the Company, to:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Prudential ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Ropes & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to any of the partnerships, to:
KKR Partners II, L.P. or
DI Associates, L.P.,
▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if to any other holder of Registrable Securities, to the address
of such other holder as shown in the stock record book of the
Company, or to such other address as any of the above shall have
designated in writing to all the other above.
All such notices and communications shall be deemed to have been given or made
(1) when delivered by hand, (2) five business days after being deposited in the
mail, postage prepaid, (3) when telexed, answer-back received or (4) when
telecopied, receipt acknowledged.
(e) DESCRIPTIVE HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
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(f) SEVERABILITY. In the event that any one or more of the
provisions, paragraphs, words, clauses, phrases or sentences contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the remaining provisions, paragraphs,
words, clauses, phrases or sentences hereof shall not be in any way impaired, it
being intended that all rights, powers and privileges of the parties hereto
shall be enforceable to the fullest extent permitted by law.
(g) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be deemed an original, but all such counterparts shall together constitute
one and the same instrument, and it shall not be necessary in making proof of
this Agreement to produce or account for more than one such counterpart.
(h) GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed therein. The parties to this Agreement
hereby agree to submit to the non-exclusive jurisdiction of the courts of the
State of Delaware in any action or proceeding arising out of or relating to this
Agreement.
(i) SPECIFIC PERFORMANCE. The parties hereto acknowledge and agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. Accordingly, it is agreed that they shall be entitled
to an injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of competent jurisdiction in the United States or any state thereof, in
addition to any other remedy to which they may be entitled at law or equity.
(j) OTHER AGREEMENTS. No provision of this Agreement will require
the Company to take any action or omit to take any action that would be in
violation of that certain letter agreement dated as of July 20, 1989 between the
Company and Berkshire Hathaway Inc.
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IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be executed on its behalf as of the date
first written above.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Vice President
KKR PARTNERS II, L.P.
By: KKR Associates,
Its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
DI ASSOCIATES, L.P.
By: KKR Associates
Its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
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