Exhibit 4.3
DIMAC HOLDINGS, INC.
$30,000,000 15 1/2% Senior Notes due October 22, 2009
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made
and entered into as of October 22, 1998, by and among DIMAC Holdings, Inc., a
Delaware corporation (the "Issuer"), and each of the purchasers listed on the
signature pages hereto (each a "Purchaser," and collectively, the "Purchasers").
This Agreement is made pursuant to the Securities Purchase
Agreement (as defined below), pursuant to which the Issuer is issuing and
selling to the Purchasers $30,000,000 aggregate principal amount of its 15 1/2%
Senior Notes due October 22, 2009, Series A (the "Notes"). As an inducement to
the Purchasers to enter into the Securities Purchase Agreement, the Issuer
agrees with the Purchasers, for the benefit of the holders of the Securities (as
defined below) (including, without limitation, the Purchasers), as follows:
Section 1. Definitions. Capitalized terms used but not defined herein
have the respective meanings given to such terms in the Securities Purchase
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
"Advice" has the meaning given to such term in Section 5 hereof.
"Agreement" means this Registration Rights Agreement.
"Applicable Period" has the meaning given to such term in Section 2(f)
hereof.
"Business Day" means any day other than (i) Saturday or Sunday, or (ii)
a day on which banking institutions in the State of New York are authorized or
obligated by law or executive order to be closed.
"Demand Date" means the date on which the any Holder provides a written
notice to the Issuer demanding the filing of an Exchange Offer Registration
Statement or a Shelf Registration.
"DIMAC Operating" means DIMAC Corporation, a Delaware corporation.
"Effectiveness Date" means the 180th day following the Demand Date.
"Effectiveness Period" has the meaning given to such term in Section
3(a) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Exchange Offer" has the meaning given to such term in Section 2(a)
hereof.
"Exchange Offer Registration Statement" has the meaning given to such
term in Section 2(a) hereof.
"Exchange Securities" means 15 1/2% Senior Notes due October 22, 2009,
Series B, of the Issuer, identical in all respects to the Notes, except for
references to series, registration rights and restrictive legends.
"Filing Date" means the 90th day following the Demand Date.
"Holder" means each holder of Registrable Securities.
"Indemnified Party" has the meaning given to such term in Section 7(c)
hereof.
"Indemnifying Party" has the meaning given to such term in Section 7(c)
hereof.
"Indenture" means the Indenture, dated the date hereof, between the
Issuer and Wilmington Trust Company, a Delaware banking corporation, 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 Shelf Registration" has the meaning given to such term in
Section 3(a) hereof.
"Issuer" has the meaning given to such term in the introductory
paragraph hereof.
"Losses" means all losses, claims, damages, liabilities, costs
(including, without limitation, costs of preparation and reasonable attorneys'
fees) and expenses (including, without limitation, costs and expenses incurred
in connection with investigating, preparing, pursuing or defending against any
of the foregoing).
"NASD" means the National Association of Securities Dealers, Inc.
"Notes" has the meaning given to such term in the introductory
paragraph hereof.
"Participating Broker-Dealer" has the meaning given to such term in
Section 2(f) hereof.
"Person" means an individual, trustee, corporation, partnership, joint
stock company, joint venture, trust, unincorporated organization or government
or any agency or political subdivision thereof, union, business association,
firm or other entity.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
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 Securities 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.
"Purchasers" has the meaning given to such term in the introductory
paragraph hereof.
"Registrable Securities" means (i) Notes and (ii) Exchange Securities
received in the Exchange Offer that may not be sold without restriction under
federal or state securities law.
"Registration Default" has the meaning given to such term in Section
4(a) hereof.
"Registration Default Date" has the meaning given to such term in
Section 4(a) hereof.
"Registration Statement" means any registration statement of the Issuer
that covers any of the Securities 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.
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"Rule 144" means Rule 144 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.
"Rule 144A" means Rule 144A 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.
"Rule 415" means Rule 415 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" means the Securities and Exchange Commission.
"Securities" means the Notes and the Exchange Securities, collectively.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Securities Purchase Agreement" means the Securities Purchase Agreement
dated as of October 22, 1998 by and among the Issuer, DIMAC Operating and the
Purchasers, as amended or supplemented from time to time.
"Shelf Notice" has the meaning given to such term in Section 2(h)
hereof.
"Shelf Registration" means the Initial Shelf Registration and any
Subsequent Shelf Registration.
"Special Counsel" means counsel chosen by the holders of a majority in
aggregate principal amount of Securities.
"Subsequent Shelf Registration" has the meaning given to such term in
Section 3(b) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means the trustee under the Indenture and, if any, the
trustee under any indenture governing the Exchange Securities.
"Underwritten Registration" or "Underwritten Offering" means a
registration in which securities of the Issuer are sold to an underwriter for
reoffering to the public.
"Weekly Liquidated Damages Amount"means, with respect to any
Registration Default, an amount per week per $1,000 principal amount of
Registrable Securities equal to (i) $0.05 for the first 90-day period
immediately following the applicable Registration Default Date, (ii) $0.10 for
the second 90-day period immediately following the applicable Registration
Default Date, (iii) $0.15 for the third 90-day period immediately following the
applicable Registration Default Date, and (iv) $0.20 thereafter.
Section 2. Exchange Offer.
(a) The Issuer shall (i) prepare and file with the SEC
promptly after the Demand Date, but in no event later than the Filing
Date, a registration statement (the "Exchange Offer Registration
Statement") on an appropriate form under the Securities Act with
respect to a proposed offer (the "Exchange Offer") to the Holders to
issue and deliver to such Holders, in exchange for the Notes, a like
aggregate principal amount of Exchange Securities, (ii) use its
reasonable best efforts to cause the Exchange Offer Registration
Statement to become effective as
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promptly as practicable after the filing thereof, but in
no event later than the Effectiveness Date, (iii) keep the Exchange
Offer Registration Statement effective until the consummation of the
Exchange Offer pursuant to its terms, and (iv) unless the Exchange
Offer would not be permitted by a policy of the SEC, commence the
Exchange Offer and use its reasonable best efforts to issue, on or
prior to 30 days after the date on which the Exchange Offer
Registration Statement is declared effective, Exchange Securities in
exchange for all Notes tendered prior thereto in the Exchange Offer.
The Exchange Offer shall not be subject to any conditions, other than
that the Exchange Offer does not violate any applicable law or any
applicable interpretation of the staff of the SEC.
(b) The Exchange Securities shall be issued under, and
entitled to the benefits of, the Indenture or a trust indenture that is
identical to the Indenture (other than such changes as are necessary to
comply with any requirements of the SEC to effect or maintain the
qualification thereof under the TIA).
(c) In connection with the Exchange Offer, the Issuer 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 that is an
exhibit to the Exchange Offer Registration Statement and any
related documents;
(ii) keep the Exchange Offer open for not less than
30 days after the date notice thereof is mailed to the Holders
(or longer if required by Applicable Law);
(iii) utilize the services of a depository for the
Exchange Offer with an address in the Borough of Manhattan,
The City of New York;
(iv) 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; and
(v) otherwise comply with all laws applicable to the
Exchange Offer.
(d) As soon as practicable after the close of the Exchange
Offer, the Issuer shall:
(i) accept for exchange all Notes validly
tendered and not validly withdrawn
pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all
Notes so accepted for exchange;
and
(iii) cause the Trustee promptly to authenticate and
deliver to each Holder of Notes, Exchange Securities equal in
aggregate principal amount to the Notes of such Holder so
accepted for exchange.
(e) Interest on each Exchange Security 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 date of original issue of the Notes. Each Exchange
Security shall bear interest at the rate set forth thereon; provided,
that interest with respect to the period prior to the issuance thereof
shall accrue at the rate or rates borne by the Notes from time to time
during such period.
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(f) The Issuer shall include within the Prospectus contained
in the Exchange Offer Registration Statement a section entitled "Plan
of Distribution," containing 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 under the Exchange Act) of Exchange
Securities received by such broker-dealer in the Exchange Offer (a
"Participating Broker-Dealer"). 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
(without limitation) all Participating Brokers-Dealers, and include a
statement describing the means by which Participating Broker-Dealers
may resell the Exchange Securities. The Issuer shall use its reasonable
best efforts to keep the Exchange Offer Registration Statement
effective and to amend and supplement the Prospectus to be lawfully
delivered by all Persons subject to the prospectus delivery requirement
of the Securities Act for such period of time as such Persons must
comply with such requirements in order to resell the Exchange
Securities (the "Applicable Period")).
(g) The Issuer may require each Holder participating in the
Exchange Offer to represent to the Issuer that at the time of the
consummation of the Exchange Offer (i) any Exchange Securities received
by such Holder in the Exchange Offer will be acquired in the ordinary
course of its business, (ii) such Holder will have no arrangement or
understanding with any Person to participate in the distribution of the
Exchange Securities within the meaning of the Securities Act or resale
of the Exchange Securities in violation of the Securities Act, (iii) if
such Holder is not a broker-dealer, that it is not engaged in and does
not intend to engage in, the distribution of the Exchange Securities,
(iv) if such Holder is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Notes that were acquired
as a result of market-making or other trading activities, that it will
deliver a prospectus, as required by law, in connection with any resale
of such Exchange Securities and (v) if such Holder is an affiliate of
the Issuer, that it will comply with the registration and prospectus
delivery requirements of the Securities Act applicable to it.
(h) If (i) prior to the consummation of the Exchange Offer,
either the Issuer or the Holders of a majority in aggregate principal
amount of Registrable Securities determines in its or their reasonable
judgment that (A) the Exchange Securities would not, upon receipt, be
tradeable by the Holders thereof without restriction under the
Securities Act and the Exchange Act and without material restrictions
under applicable Blue Sky or state securities laws, or (B) the
interests of the Holders under this Agreement, taken as a whole, would
be materially adversely affected by the consummation of the Exchange
Offer, (ii) applicable interpretations of the staff of the SEC would
not permit the consummation of the Exchange Offer prior to the
Effectiveness Date, (iii) the Exchange Offer is not consummated within
210 days of the Demand Date for any reason or (iv) in the case of any
Holder not permitted to participate in the Exchange Offer or of any
Holder participating in the Exchange Offer that receives Exchange
Securities that may not be sold without restriction under state and
federal securities laws and, in either case contemplated by this clause
(iv), such Holder notifies the Issuer within six months of consummation
of the Exchange Offer, then the Issuer shall promptly deliver to the
Holders (or in the case of any occurrence of the event described in
clause (iv) of this Section 2(h), to any such Holder) and the Trustee
notice thereof (the "Shelf Notice") and shall as promptly as possible
thereafter file an Initial Shelf Registration pursuant to Section 3
hereof.
Section 3. Shelf Registration. If a Shelf Notice is required to be
delivered pursuant to Section 2(h)(i), (ii) or (iii) hereof, then this Section 3
shall apply to all Registrable Securities. Otherwise, upon consummation of the
Exchange Offer in accordance with Section 2 hereof, the provisions of this
Section 3 shall apply solely with respect to (i) Notes held by any Holder
thereof not permitted to participate in the Exchange Offer and (ii) Exchange
Securities that are not freely tradeable as contemplated by Section
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2(h)(iv) hereof; provided, in each case, that such Holder has notified the
Issuer within six months of the Exchange Offer as required by Section 2(h)(iv)
hereof.
(a) Initial Shelf Registration. The Issuer shall use its
reasonable best efforts to 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 Securities (the "Initial Shelf
Registration"). If the Issuer has not yet filed an Exchange Offer
Registration Statement, the Issuer shall file with the SEC the Initial
Shelf Registration on or prior to the Filing Date. Otherwise, the
Issuer shall use its reasonable best efforts to file the Initial Shelf
Registration within 20 days of the delivery of the Shelf Notice. The
Initial Shelf Registration shall be on Form S-1 or another appropriate
form permitting registration of such Registrable Securities for resale
by such Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The Issuer
shall (i) not permit any securities other than the Registrable
Securities to be included in any Shelf Registration, and (ii) use its
reasonable best efforts to cause the Initial Shelf Registration to be
declared effective under the Securities Act as promptly as practicable
after the filing thereof and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the date that is
24 months from the Effectiveness Date (subject to extension pursuant to
the last paragraph of Section 5 hereof) (the "Effectiveness Period"),
or such shorter period ending when (i) all Registrable Securities
covered by the Initial Shelf Registration have been sold or (ii) a
Subsequent Shelf Registration covering all of the Registrable
Securities has been declared effective under the Securities Act.
(b) Subsequent Shelf Registrations. If any Shelf Registration
ceases to be effective for any reason at any time during the
Effectiveness Period (other than because of the sale of all of the
Registrable Securities registered thereunder), the Issuer shall use its
reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 30
days of such cessation of effectiveness amend the Shelf Registration 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 Securities (a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, the Issuer shall use its
reasonable best efforts to cause the Subsequent Shelf Registration to
be declared effective as soon as practicable after such filing and to
keep such Subsequent Shelf Registration 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,
and any Subsequent Shelf Registration, was previously effective.
Section 4. Liquidated Damages.
(a) The Issuer acknowledges and agrees that the Holders will
suffer damages, and that it would not be feasible to ascertain the
extent of such damages with precision, if the Issuer fails to fulfill
its obligations hereunder. Accordingly, in the event of such failure,
the Issuer agrees to pay liquidated damages to each Holder under the
circumstances and to the extent set forth below:
(i) if neither the Exchange Offer Registration
Statement nor the Initial Shelf Registration has been filed
with the SEC on or prior to the Filing Date; or
(ii) if neither the Exchange Offer Registration
Statement nor the Initial Shelf Registration is declared
effective by the SEC on or prior to the Effectiveness Date; or
(iii) if the Issuer has not exchanged Exchange
Securities for all Notes validly tendered and not validly
withdrawn in accordance with the terms of the Exchange Offer
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within 30 days after the date on which an Exchange Offer
Registration Statement is declared effective by the SEC; or
(iv) if a Shelf Registration is filed and declared
effective by the SEC but thereafter ceases to be effective
during the Effectiveness Period without subsequently being
succeeded by a Subsequent Shelf Registration filed and
declared effective within 30 days;
(each of the foregoing a "Registration Default," and the date on which
the Registration Default occurs being referred to herein as a
"Registration Default Date").
Upon the occurrence of any Registration Default, the Issuer
shall pay, or cause to be paid, in addition to amounts otherwise due
under the Indenture and the Registrable Securities, as liquidated
damages, and not as a penalty, to each Holder for each weekly period
beginning on the Registration Default Date an amount equal to the
Weekly Liquidated Damages Amount per $1,000 principal amount of
Registrable Securities held by such Holder; provided, that such
liquidated damages will, in each case, cease to accrue (subject to the
occurrence of another Registration Default) on the date on which all
Registration Defaults have been cured. A Registration Default under
clause (i) above shall be cured on the date that either the Exchange
Offer Registration Statement or the Initial Shelf Registration is filed
with the SEC; a Registration Default under clause (ii) above shall be
cured on the date that either the Exchange Offer Registration Statement
or the Initial Shelf Registration is declared effective by the SEC; a
Registration Default under clause (iii) above shall be cured on the
earlier of the date (A) the Exchange Offer is consummated with respect
to all Notes validly tendered and not validly withdrawn or (B) the
Issuer delivers a Shelf Notice to the Holders; and a Registration
Default under clause (iv) above shall be cured on the date on which the
Subsequent Shelf Registration is declared effective.
(b) The Issuer shall notify the Trustee within five Business
Days after each Registration Default Date. The Issuer shall pay the
liquidated damages due on the Registrable Securities by either (i)
depositing with the Trustee, in trust, for the benefit of the Holders
thereof, by 12:00 noon, New York City time, on or before the applicable
semi-annual interest payment date for the Registrable Securities,
immediately available funds in sums sufficient to pay the liquidated
damages then due or (ii) issuing PIK Notes in the amount of the
liquidated damages due on the Registrable Securities. The liquidated
damages amount due shall be payable on each interest payment date to
the Holder entitled to receive the interest payment to be made on such
date as set forth in the Indenture.
Section 5. Registration Procedures. In connection with the registration
of any Securities pursuant to Section 2 or Section 3 hereof, the Issuer shall
effect such registrations to permit the sale of such Securities in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
the Issuer shall:
(a) Prepare and file with the SEC, as soon as practicable
after the Demand Date but in any event on or prior to the Filing Date,
a Registration Statement or Registration Statements as prescribed by
Section 2 or Section 3 hereof, and use its best efforts to cause each
such Registration Statement to become effective and remain effective
as provided herein; provided, that, if (i) such filing is pursuant to
Section 3 hereof or (ii) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Issuer shall,
if requested, furnish to and afford the Holders of the Registrable
Securities covered by such Registration Statement, their Special
Counsel, each Participating Broker-Dealer, the managing underwriters,
if any, and their counsel, a reasonable
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opportunity to review and make available for inspection by such Persons
copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to
be filed, such financial and other information and books and records of
the Issuer and its Subsidiaries, and use its reasonable best efforts to
cause the officers, directors and employees of the Issuer and its
Subsidiaries and counsel and independent certified public accountants
of the the Issuer and its Subsidiaries, to respond to such inquiries,
as shall be reasonably necessary, in the opinion of respective counsel
to such Holders, Participating Broker- Dealer and underwriters, to
conduct a reasonable investigation within the meaning of the Securities
Act. The Issuer may require each Holder to agree to keep confidential
any non-public information relating to the Issuer received by such
Holder and not disclose such information (other than to an Affiliate or
prospective purchaser who agrees to respect the confidentiality
provisions of this Section 5(a)) until such information has been made
generally available to the public unless the release of such
information is required by law or necessary to respond to inquiries of
regulatory authorities (including the National Association of Insurance
Commissioners, or similar organizations or their successors). The
Issuer 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 Securities covered by such Registration Statement,
their Special Counsel, any Participating Broker-Dealer or the managing
underwriters, if any, or their counsel shall reasonably object.
(b) Provide an indenture trustee for the Registrable
Securities or the Exchange Securities, as the case may be, and use its
reasonable best efforts to cause the Indenture (or other indenture
relating to the Registrable Securities) to be qualified under the TIA
not later than the effective date of the first Registration Statement;
and in connection therewith, 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 reasonable 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.
(c) Prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep such Registration Statement continuously effective
for the time periods required hereby; 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
in all material respects with the provisions of the Securities Act and
the Exchange Act applicable thereto with respect to the disposition of
all securities covered by such Registration Statement, as so amended,
or in such Prospectus, as so supplemented, in accordance with the
intended methods of distribution set forth in such Registration
Statement or Prospectus as so amended.
(d) Furnish to such selling Holders and Participating
Broker-Dealers who so request (i) upon the Issuer's receipt, a copy of
the order of the SEC declaring such Registration Statement
and any post-effective amendment thereto effective, (ii) such
reasonable number of copies of such Registration Statement and of each
amendment and supplement thereto (in each case including any documents
incorporated therein by reference and all exhibits), (iii) such
reasonable number of copies of the Prospectus included in such
Registration Statement (including each preliminary Prospectus), and
such reasonable number of copies of the final Prospectus as filed by
the Issuer pursuant to Rule 424(b) under the Securities Act, in
conformity with the requirements of the Securities Act, and (iv) such
other documents (including any amendments required to be filed pursuant
to clause (c) of this Section 5), as any such Person may reasonably
request. The Issuer hereby consents to the use of the Prospectus by
each of the selling Holders of Registrable Securities
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or each such Participating Broker-Dealer, as the case may be, and the
underwriters or agents, if any, and dealers (if any), in connection
with the offering and sale of the Registrable Securities covered by,
or the sale by Participating Broker-Dealers of the Exchange Securities
pursuant to, such Prospectus and any amendment thereto.
(e) If (A) a Shelf Registration is filed pursuant to Section 3
hereof or (B) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities during the Applicable Period,
notify the selling Holders of Registrable Securities, their Special
Counsel, each Participating Broker-Dealer and the managing
underwriters, if any, promptly (but in any event within two Business
Days), and confirm such notice in writing, (i) when a Prospectus has
been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act, (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 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 Securities, the
representations and warranties of the Issuer contained in any agreement
(including any underwriting agreement) contemplated by Section 5(n)
below cease to be true and correct in any material respect, (iv) of the
receipt by the Issuer of any notification with respect to the
suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Securities or the
Exchange Securities to be sold by any Participating Broker-Dealer for
offer or sale in any jurisdiction, or the contemplation, initiation or
threatening of any proceeding for such purpose, (v) of the happening of
any event that makes any statement made in such Registration Statement
or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or
that requires the making of any changes in such Registration Statement,
Prospectus or documents so that 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 Issuer's reasonable determination that a
post-effective amendment to a Registration Statement would be
appropriate.
(f) Use its reasonable best efforts to register or qualify,
and, if applicable, to cooperate with the selling Holders of
Registrable Securities, the underwriters, if any, and their respective
counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of, Securities to be
included in a Registration Statement 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 underwriters reasonably request in writing; and, if Securities
are offered other than through an Underwritten Offering, the Issuer
shall cause its counsel to perform Blue Sky investigations and file
registrations and qualifications required to be filed pursuant to this
Section 5(f) at the expense of the Issuer; 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 necessary or advisable to enable the
disposition in such jurisdictions of the Securities covered by the
applicable Registration Statement, provided, however, that the Issuer
shall not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified, (ii) to take action
that would subject it to general service of process in any
jurisdiction where it is not so subject or (iii) subject it to
taxation in respect of doing business in any such jurisdiction where
it is not then subject.
(g) 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
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Prospectus or suspending the qualification (or exemption from
qualification) of any of the Securities 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
time.
(h) If (A) a Shelf Registration is filed pursuant to Section 3
hereof or (B) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities during the Applicable Period, and
if requested by the managing underwriters, if any, or the Holders of a
majority in aggregate principal amount of the Registrable Securities,
(i) promptly incorporate in a Prospectus or post-effective amendment
such information as the managing underwriters, if any, or such Holders
reasonably request to be included therein required to comply with any
Applicable Law and (ii) make all required filings of such Prospectus or
such post-effective amendment as soon as practicable after the Issuer
has received notification of such matters required by Applicable Law to
be incorporated in such Prospectus or post-effective amendment.
(i) If (A) a Shelf Registration is filed pursuant to Section 3
hereof or (B) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities during the Applicable Period,
cooperate with the selling Holders and the managing underwriters, if
any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold, which certificates
shall not bear any restrictive legends and shall be in a form eligible
for deposit with The Depository Trust Company ("DTC"); and enable such
Registrable Securities to be in such denominations and registered in
such names as the managing underwriters, if any, or Holders may
request.
(j) If (i) a Shelf Registration is filed pursuant to
Section 3 hereof or (ii) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is
required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, upon the occurrence of any event
contemplated by paragraph 6(e)(v) or 6(e)(vi) above, as promptly as
practicable prepare 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 Securities
being sold thereunder or to the purchasers of the Exchange
Securities to whom such Prospectus will be delivered by a
Participating Broker-Dealer, 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.
(k) Use its reasonable best efforts to cause the Securities
covered by a Registration Statement to be rated with the appropriate
rating agencies, if appropriate, if so requested by the Holders of a
majority in aggregate principal amount of Securities covered by such
Registration Statement or the managing underwriters, if any.
(l) Prior to the effective date of the first Registration
Statement relating to the Securities, (i) provide the applicable
trustee with printed certificates for the Securities in a form eligible
for deposit with DTC and (ii) provide a CUSIP number for each of the
Securities.
(m) Use its reasonable best efforts to cause all Securities
covered by such Registration Statement to be listed on each securities
exchange, if any, on which similar debt securities issued by the Issuer
are then listed.
10
(n) If a Shelf Registration is filed pursuant to Section 3
hereof, enter into such agreements (including an underwriting agreement
in form, scope and substance as is customary in underwritten offerings
of debt securities similar to the Notes) and take all such other
actions in connection therewith (including those reasonably requested
by the managing underwriters, if any, or the Holders of a majority in
aggregate principal amount of the Registrable Securities being sold) in
order to expedite or facilitate the registration or the disposition of
such Registrable Securities, and in such connection, regardless of
whether an underwriting agreement is entered into and regardless of
whether the registration is an Underwritten Registration, (i) make such
representations and warranties to the Holders and the underwriters, if
any, with respect to the business of the Issuer and its subsidiaries,
and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each
case, in form, substance and scope as are customarily made by issuers
to underwriters in underwritten offerings of debt securities similar to
the Notes, and confirm the same if and when reasonably requested; (ii)
obtain opinions of counsel to the Issuer and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and the Holders of a
majority in aggregate principal amount of the Registrable Securities
being sold), addressed to each selling Holder and each of the
underwriters, if any, covering the matters customarily covered in
opinions requested in underwritten offerings of debt securities similar
to the Notes; (iii) obtain "cold comfort" letters and updates thereof
(which letters and updates (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters) from the
independent certified public accountants of the Issuer (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Issuer or of any business acquired by the Issuer for
which financial statements and financial data are, or are required to
be, included in the Registration Statement), addressed to each of the
underwriters and each selling Holder, 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 reasonably
requested by underwriters; and (iv) deliver such documents and
certificates as may be reasonably requested by the Holders of a
majority in principal amount of the Registrable Securities being sold
and the managing underwriters, if any, to evidence the continued
validity of the representations and warranties of the Issuer and its
subsidiaries made pursuant to clause (i) above and to evidence
compliance with any conditions contained in the underwriting agreement
or other similar agreement entered into by the Issuer.
(o) Comply with all applicable rules and regulations of the
SEC and make generally available to its security holders 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 on the first
day of the fiscal quarter following each fiscal quarter in which
Registrable Securities 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 Issuer after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods.
(p) Upon consummation of an Exchange Offer, obtain an opinion
of counsel to the Issuer (in form, scope and substance reasonably
satisfactory to the Purchasers), addressed to all Holders participating
in the Exchange Offer to the effect that (i) the Issuer has duly
authorized, executed and delivered the Exchange Securities and the
Indenture and (ii) the Exchange Securities and the Indenture constitute
legal, valid and binding obligations of the Issuer, enforceable against
the Issuer in accordance with their respective terms, except as such
enforcement may be subject to (x) applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting
11
creditors' rights and remedies generally and (y) general principles of
equity (regardless of whether such enforcement is sought in a
proceeding in equity or at law).
(q) If an Exchange Offer is to be consummated, upon delivery
of the Registrable Securities by such Holders to the Issuer (or to such
other Person as directed by the Issuer) in exchange for the Exchange
Securities, the Issuer shall ▇▇▇▇, or caused to be marked, on such
Registrable Securities that such Registrable Securities are being
cancelled in exchange for the Exchange Securities; in no event shall
such Registrable Securities be marked as paid or otherwise satisfied.
(r) Cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be
made with the NASD.
(s) Use its reasonable best efforts to take all other steps
necessary to effect the registration of the Registrable Securities
covered by a Registration Statement contemplated hereby.
The Issuer may require each seller of Registrable
Securities or Participating Broker-Dealer as to which any registration
is being effected to furnish to the Issuer such information regarding
such seller or Participating Broker-Dealer and the distribution of such
Registrable Securities or Exchange Securities as the Issuer may, from
time to time, reasonably request in writing. The Issuer may exclude
from such registration the Registrable Securities of any seller or
Exchange Securities of any Participating Broker-Dealer who unreasonably
fails to furnish such information.
Each Holder and each Participating Broker-Dealer
agrees by acquisition of such Registrable Securities or Exchange
Securities of any Participating Broker-Dealer that, upon receipt of
written notice from the Issuer of the happening of any event of the
kind described in Section 5(e)(ii), 5(e)(iv), 5(e)(v) or 5(e)(vi)
hereof, such Holder will forthwith discontinue disposition (in the
jurisdictions specified in a notice of a 5(e)(iv) event, and elsewhere
in a notice of a 5(e)(ii), 5(e)(v) or 5(e)(vi) event) of such
Securities covered by such Registration Statement or Prospectus until
such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 5(j) hereof, or until it is advised
in writing (the "Advice") by the Issuer that offers or sales in a
particular jurisdiction may be resumed or that the use of the
applicable Prospectus may be resumed, as the case may be, and has
received copies of any amendments or supplements thereto. If the Issuer
shall give 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 such Securities covered by
such Registration Statement shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 5(j) hereof
or (y) the Advice.
Section 6. Registration Expenses.
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuer shall be borne by the
Issuer, regardless of whether the Exchange Offer or a Shelf
Registration 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 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
12
Registrable Securities or Exchange Securities and
determination of the eligibility of the Registrable Securities
or Exchange Securities for investment under the laws of such
jurisdictions (x) where the Holders are located, in the case
of the Exchange Securities, or (y) as provided in Section 5(f)
hereof, in the case of Registrable Securities or Exchange
Securities to be sold by a Participating Broker-Dealer during
the Applicable Period);
(ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable
Securities or Exchange Securities in a form eligible for
deposit with DTC and of printing Prospectuses if the printing
of Prospectuses is requested by the managing underwriters, if
any, or, in respect of Registrable Securities or Exchange
Securities to be sold by a Participating Broker-Dealer during
the Applicable Period, by the Holders of a majority in
aggregate principal amount of the Registrable Securities
included in any Registration Statement or of such Exchange
Securities, as the case may be);
(iii) messenger, telephone, duplication, word
processing and delivery expenses incurred by the Issuer in the
performance of its obligations hereunder;
(iv) fees and disbursements of counsel for the
Issuer;
(v) fees and disbursements of all independent
certified public accountants referred to in Section 5(n)(iii)
hereof (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or
incident to such performance);
(vi) fees and expenses of any "qualified independent
underwriter" or other independent appraiser participating in
an offering pursuant to Rule 2720(c) of the NASD Conduct
Rules, but only where the need for such a "qualified
independent underwriter" arises due to a relationship with the
Issuer;
(vii) Securities Act liability insurance, if the
Issuer so desires such insurance;
(viii) fees and expenses of all other Persons
retained by the Issuer; internal expenses of the Issuer
(including, without limitation, all salaries and expenses of
officers and employees of the Issuer performing legal or
accounting duties); and the expense of any annual audit; and
(ix) rating agency fees and the fees and expenses
incurred in connection with the listing of the Securities to
be registered on any securities exchange.
(b) The Issuer shall reimburse the Holders 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 Securities to be included
in any Registration Statement and other reasonable and necessary
out-of-pocket expenses of the Holders incurred in connection with the
registration of the Registrable Securities. The Issuer shall pay all
documentary, stamp, transfer or other transactional taxes attributable
to the issuance or delivery of the Exchange Securities in exchange for
the Notes.
Section 7. Indemnification.
(a) Indemnification by the Issuer. The Issuer shall, without
limitation as to time, indemnify and hold harmless each Holder and each
Participating Broker-Dealer, each Person who controls each such Holder
(within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act) and the officers, directors, partners,
employees, representatives and
13
agents of each such Holder, Participating Broker-Dealer and
controlling person, to the fullest extent lawful, from and against any
and all Losses, as incurred, directly or indirectly caused by, related
to, based upon, arising out of or in connection with any untrue or
alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or form of prospectus, or in any
amendment or supplement thereto, or in any preliminary prospectus, or
any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, except insofar as such Losses are based upon
information relating to such Holder or Participating Broker-Dealer and
furnished in writing to the Issuer by such Holder or Participating
Broker-Dealer expressly for use therein. The Issuer shall also
indemnify underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution,
their officers, directors, agents and employees and each Person who
controls such Persons (within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act) to the same
extent as provided above with respect to the indemnification of the
Holders or the Participating Broker-Dealer.
(b) Indemnification by Holder of Registrable Securities. In
connection with any Registration Statement, Prospectus or form of
prospectus, any amendment or supplement thereto, or any preliminary
prospectus in which a Holder is participating, such Holder shall
furnish to the Issuer in writing such information as the Issuer
reasonably requests for use in connection with any Registration
Statement, Prospectus or form of prospectus, any amendment or
supplement thereto, or any preliminary prospectus and shall, without
limitation as to time, indemnify and hold harmless the Issuer, its
directors, officers, agents and employees, each Person, if any, who
controls the Issuer (within the meaning of Section 15 of the Securities
Act and Section 20(a) of the Exchange Act), and the directors,
officers, agents or employees of such controlling persons, to the
fullest extent lawful, from and against all Losses arising out of or
based upon any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or form of
prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading to the extent, but only to the
extent, that such untrue statement or alleged untrue statement of a
material fact or omission or alleged omission of a material fact is
contained in or omitted from any information so furnished in writing by
such Holder to the Issuer expressly for use therein. In no event shall
the liability of any selling Holder be greater in amount than the
dollar amount of the proceeds (net of payment of all expenses)
received by such Holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any action or
proceeding (including a governmental investigation) (a "Proceeding")
shall be brought or asserted against any Person entitled to indemnity
hereunder (an "Indemnified Party"), such Indemnified Party shall
promptly notify the party or parties from which such indemnity is
sought (the "Indemnifying Parties") in writing; provided, that the
failure to so notify the Indemnifying Parties shall not relieve the
Indemnifying Parties from any obligation or liability except to the
extent (but only to the extent) that it shall be finally determined by
a court of competent jurisdiction (which determination is not subject
to appeal) that the Indemnifying Parties have been prejudiced
materially by such failure.
The Indemnifying Party shall have the right,
exercisable by giving written notice to an Indemnified Party, within 20
Business Days after receipt of written notice from such Indemnified
Party of such Proceeding, to assume, at its expense, the defense of any
such Proceeding, provided, that an Indemnified Party shall have the
right to employ separate counsel in any such Proceeding and to
participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party or parties
unless: (1) the Indemnifying
14
Party has agreed to pay such fees and expenses; or (2) the
Indemnifying Party shall have failed promptly to assume the defense of
such Proceeding or shall have failed to employ counsel reasonably
satisfactory to such Indemnified Party; or (3) the named parties to
any such Proceeding (including any impleaded parties) include both
such Indemnified Party and the Indemnifying Party or any of its
affiliates or controlling persons, and such Indemnified Party shall
have been advised by counsel that there may be one or more defenses
available to such Indemnified Party that are in addition to, or in
conflict with, those defenses available to the Indemnifying Party or
such affiliate or controlling person (in which case, if such
Indemnified Party notifies the Indemnifying Parties in writing that it
elects to employ separate counsel at the expense of the Indemnifying
Parties, the Indemnifying Parties shall not have the right to assume
the defense thereof and the reasonable fees and expenses of such
counsel shall be at the expense of the Indemnifying Party; it being
understood, however, that, the Indemnifying Party shall not, in
connection with any one such Proceeding or separate but substantially
similar or related Proceedings 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 of attorneys
(together with appropriate local counsel) at any time for such
Indemnified Party).
No Indemnifying Party shall be liable for any
settlement of any such Proceeding effected without its written consent,
but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such Proceeding, each Indemnifying
Party jointly and severally agrees, subject to the exceptions and
limitations set forth above, to indemnify and hold harmless each
Indemnified Party from and against any and all Losses by reason of such
settlement or judgment. The Indemnifying Party shall not consent to the
entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to each Indemnified Party of a release, in form and substance
reasonably satisfactory to the Indemnified Party, from all liability in
respect of such Proceeding for which such Indemnified Party would be
entitled to indemnification hereunder (regardless of whether any
Indemnified Party is a party thereto).
(d) Contribution. If the indemnification provided for in this
Section 7 is unavailable to an Indemnified Party or is insufficient to
hold such Indemnified Party harmless for any Losses in respect of which
this Section 7 would otherwise apply by its terms (other than by reason
of exceptions provided in this Section 7), then each applicable
Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall have a joint and several obligation to contribute to the amount
paid or payable by such Indemnified Party as a result of such Losses,
in such proportion as is appropriate to reflect the relative benefits
received by the Indemnifying Party, on the one hand, and such
Indemnified Party, on the other hand, from the offering of the Notes,
or (ii) if the allocation provided by clause (i) above is not permitted
by Applicable Law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the
relative fault of the Indemnifying Party, on the one hand, and such
Indemnified Party, on the other hand, in connection with the actions,
statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such
Indemnifying Party, on the one hand, and Indemnified Party, on the
other hand, shall be determined by reference to, among other things,
whether any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by such Indemnifying Party or Indemnified Party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent any such statement or omission. The
amount paid or payable by an Indemnified Party as a result of any
Losses shall be deemed to include any legal or other fees or expenses
incurred by such party in connection with any Proceeding, to the extent
such party would have been indemnified for such fees or expenses if the
indemnification provided for in Section 7(a) or 7(b) hereof was
available to such party.
15
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined
by pro rata allocation or by any other method of allocation that does
not take account of the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the provisions of this
Section 7(d), an Indemnifying Party that is a selling Holder shall not
be required to contribute, in the aggregate, any amount in excess of
such Holder's Maximum Contribution Amount. A selling Holder's "Maximum
Contribution Amount" shall equal the excess of (i) the aggregate
proceeds received by such Holder pursuant to the sale of such
Registrable Securities over (ii) the aggregate amount of damages that
such Holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this
Section 7 are in addition to any liability that the Indemnifying Parties may
have to the Indemnified Parties.
Section 8. Rule 144 and Rule 144A. The Issuer covenants that it shall
(a) file the reports required to be filed by it (if so required) under the
Securities Act and the Exchange Act in a timely manner and, if at any time any
the Issuer is not required to file such reports, it will, upon the request of
any Holder, make publicly available other information necessary to permit sales
pursuant to Rule 144 and Rule 144A and (b) take such further action as any
Holder may reasonably request, all to the extent required from time to time to
enable such Holder to sell Registrable Securities without registration under the
Securities Act pursuant to the exemptions provided by Rule 144 and Rule 144A.
Upon the request of any Holder, the Issuer shall deliver to such Holder a
written statement as to whether it has complied with such information and
requirements.
Section 9. Underwritten Registrations. If any of the Registrable
Securities covered by any Shelf Registration 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 Registrable Securities included in such
offering, subject to the consent of the Issuer (which shall not be withheld or
delayed unreasonably), and Holders participating in such offering shall be
responsible for all underwriting commission and discounts in connection
therewith. No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Registrable Securities 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, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
Section 10. Miscellaneous.
(a) Remedies. In the event of a breach by the Issuer of any of
its obligations under this Agreement, each Holder, in addition to being
entitled to exercise all rights provided herein, in the Indenture or,
in the case of the Purchasers, in the Securities Purchase Agreement, or
granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Issuer
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.
(b) No Inconsistent Agreements. The Issuer has not entered
into, as of the date hereof, and shall not enter into, after the date
of this Agreement, any agreement with respect to
16
any of its securities that is inconsistent with the rights granted to
the Holders in this Agreement or otherwise conflicts with the
provisions hereof.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified
or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Issuer has obtained the
written consent of Holders of at least a majority of the then
outstanding aggregate principal amount of Registrable Securities;
provided, that Section 5(a) and Section 7 hereof shall not be amended,
modified or supplemented, and waivers or consents to departures from
this proviso may not be given, unless the Issuer has obtained the
written consent of each Holder affected thereby. 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 whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the rights of
other Holders may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Securities being sold by
such Holders pursuant to such Registration Statement, provided that the
provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the
immediately preceding sentence.
(d) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee)
provided for or permitted hereunder shall be made in writing by
hand-delivery, certified first-class mail, return receipt requested,
next-day air courier or facsimile:
(i) if to a Holder, at the most current address given
by such Holder to the Issuer in accordance with the provisions
of this Section 10(d), which address initially is, with
respect to each Holder, the address of such Holder maintained
by the Registrar under the Indenture, with a copy to Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopy number (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇, Esq.; and
(ii) if to the Issuer, to DIMAC Holdings, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Chief Financial
Officer, with a copy to ▇▇▇▇▇▇ De Leeuw & Co., ▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇, with a copy to White & Case LLP, ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 10(d).
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
telecopied. 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.
(e) 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 and without the need for an
express assignment, subsequent Holders.
17
(f) 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.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(h) Governing Law; Submission to Jurisdiction; etc. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW EXCEPT SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW. THE ISSUER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.
THE ISSUER IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY
DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. THE ISSUER IRREVOCABLY CONSENTS, TO
THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO
THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE ISSUER AT ITS ADDRESS SET FORTH
HEREIN, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY HOLDER TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS
OR OTHERWISE PROCEED AGAINST THE ISSUER IN ANY OTHER JURISDICTION.
(i) 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. It is hereby stipulated and
declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid,
illegal, void or unenforceable.
(j) Entire Agreement. This Agreement 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. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with
respect to the registration rights granted by the Issuer in respect of
securities sold pursuant to the Securities Purchase Agreement. This
Agreement supersedes all prior agreements and understandings between
the parties with respect to such subject matter.
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(k) Attorneys' Fees. In any Proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing party, as determined by the
courts, shall be entitled to recover reasonable attorneys' fees in
addition to its costs and expenses and any other available remedy.
(l) Securities Held by the Issuer or its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities
held by the Issuer or its affiliates (as such term is defined in Rule
405 under the Securities Act) (other than Holders deemed to be such
affiliates solely by reason of their holdings of such Registrable
Securities) shall not be counted in determining whether such consent or
approval was given by the holders of such required percentage.
(Signature Page Follows)
19
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
Very truly yours,
DIMAC HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Title: Chief Executive Officer
------------------------
Accepted and Agreed to:
TCW/CRESCENT MEZZANINE PARTNERS, L.P.
TCW/CRESCENT MEZZANINE TRUST
TCW/CRESCENT MEZZANINE INVESTMENT PARTNERS, L.P.
By: TCW/CRESCENT MEZZANINE, L.L.C.,
its general partner or managing owner
By: /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Title: Managing Director
-----------------------------
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Title: Managing Director
-----------------------------
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW ADVISORS (BERMUDA), LIMITED,
as General Partner
By: /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: Managing Director
------------------------------
By: TCW INVESTMENT MANAGEMENT
COMPANY, as Investment Advisor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Managing Director
------------------------------
TCW SHARED OPPORTUNITY FUND II, L.P.
By: TCW INVESTMENT MANAGEMENT
COMPANY, its investment advisor
By: /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: Managing Director
------------------------------
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: Managing Director
-------------------------------