Exhibit 4.5
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REGISTRATION RIGHTS AGREEMENT
Dated as of April 17, 2001
By and Among
SOLA INTERNATIONAL INC.,
as Issuer,
and
UBS AG
acting through
its business group
UBS WARBURG,
as Initial Purchaser
11% Senior Notes due 2008
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TABLE OF CONTENTS
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Page
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1. Definitions.................................................................................................. 1
2. Exchange Offer............................................................................................... 4
3. Shelf Registration........................................................................................... 7
4. Liquidated Damages........................................................................................... 8
5. Registration Procedures...................................................................................... 10
6. Registration Expenses........................................................................................ 18
7. Indemnification.............................................................................................. 19
8. Rules 144 and 144A........................................................................................... 22
9. Underwritten Registrations................................................................................... 22
10. Miscellaneous................................................................................................ 22
(a) No Inconsistent Agreements.......................................................................... 22
(b) Adjustments Affecting Registrable Notes............................................................. 22
(c) Amendments and Waivers.............................................................................. 23
(d) Notices............................................................................................. 23
(e) Successors and Assigns.............................................................................. 24
(f) Counterparts........................................................................................ 24
(g) Headings............................................................................................ 24
(h) Governing Law....................................................................................... 24
(i) Severability........................................................................................ 24
(j) Securities Held by the Issuer or Its Affiliates..................................................... 25
(k) Third-Party Beneficiaries........................................................................... 25
(l) Attorneys' Fees..................................................................................... 25
(m) Entire Agreement.................................................................................... 25
SIGNATURES............................................................................................................ S-1
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated
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as of April 17, 2001, by and between SOLA INTERNATIONAL INC., a Delaware
corporation (the "Issuer"), on the one hand, and UBS AG, acting through its
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business group UBS WARBURG (the "Initial Purchaser"), on the other hand.
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This Agreement is entered into in connection with the Purchase
Agreement, dated as of April 9, 2001, by and among the Issuer and the Initial
Purchaser (the "Purchase Agreement"), relating to the offering of
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(euro)205,000,000 aggregate principal amount of the Issuer's 11% Senior Notes
due 2008 (the "Notes"). The execution and delivery of this Agreement is a
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condition to the Initial Purchaser's obligation to purchase the Notes under the
Purchase Agreement.
The parties hereby agree as follows:
Section 1. Definitions
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As used in this Agreement, the following terms shall have the
following meanings:
"Action" shall have the meaning set forth in Section 7(c)
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hereof.
"Advice" shall have the meaning set forth in Section 5 hereof.
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"Agreement" shall have the meaning set forth in the first
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introductory paragraph hereto.
"Applicable Period" shall have the meaning set forth in
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Section 2(b) hereof.
"Board of Directors" shall have the meaning set forth in
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Section 5 hereof.
"Business Day" shall mean a day that is not a Legal Holiday.
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"Commission" shall mean the Securities and Exchange
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Commission.
"Day" shall mean a calendar day.
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"Damages Payment Date" shall have the meaning set forth in
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Section 4(b) hereof.
"Delay Period" shall have the meaning set forth in Section 5
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hereof.
"Effectiveness Period" shall have the meaning set forth in
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Section 3(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
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as amended, and the rules and regulations of the Commission promulgated
thereunder.
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"Exchange Notes" shall have the meaning set forth in Section
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2(a) hereof.
"Exchange Offer" shall have the meaning set forth in Section
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2(a) hereof.
"Exchange Offer Registration Statement" shall have the meaning
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set forth in Section 2(a) hereof.
"Holder" shall mean any holder of a Registrable Note or
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Registrable Notes.
"Indemnified Party" shall have the meaning set forth in
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Section 7(c) hereof.
"Indemnifying Party" shall have the meaning set forth in
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Section 7(c) hereof.
"Indenture" shall mean the Indenture, dated as of April 17,
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2001, by and between the Issuer and The Bank of New York 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 Purchaser" shall have the meaning set forth in the
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first introductory paragraph hereof.
"Inspectors" shall have the meaning set forth in Section 5(n)
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hereof.
"Issue Date" shall mean April 17, 2001, the date of original
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issuance of the Notes.
"Issuer" shall have the meaning set forth in the introductory
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paragraph hereto and shall also include the Issuer's permitted successors and
assigns.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on
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which banking institutions in New York, New York are required by law, regulation
or executive order to remain closed.
"Liquidated Damages" shall have the meaning set forth in
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Section 4(a) hereof.
"Losses" shall have the meaning set forth in Section 7(a)
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hereof.
"Notes" shall have the meaning set forth in the second
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introductory paragraph hereto.
"Participant" shall have the meaning set forth in Section 7(a)
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hereof.
"Participating Broker-Dealer" shall have the meaning set forth
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in Section 2(b) hereof.
"Person" shall mean an individual, corporation, partnership,
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joint venture association, joint stock company, trust, unincorporated limited
liability company, government or any agency or political subdivision thereof or
any other entity.
"Private Exchange" shall have the meaning set forth in Section
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2(b) hereof.
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"Private Exchange Notes" shall have the meaning set forth in
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Section 2(b) hereof.
"Prospectus" shall mean the prospectus included in any
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Registration Statement (including, without limitation, any prospectus subject to
completion and a prospectus that includes any information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"Purchase Agreement" shall have the meaning set forth in the
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second introductory paragraph hereof.
"Records" shall have the meaning set forth in Section 5(n)
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hereof.
"Registrable Notes" shall mean each Note upon its original
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issuance and at all times subsequent thereto, each Exchange Note as to which
Section 2(c)(iii) hereof is applicable upon original issuance and at all times
subsequent thereto and each Private Exchange Note upon original issuance thereof
and at all times subsequent thereto, in each case until (i) a Registration
Statement (other than, with respect to any Exchange Note as to which Section
2(c)(iii) hereof is applicable, the Exchange Offer Registration Statement)
covering such Note, Exchange Note or Private Exchange Note has been declared
effective by the Commission and such Note, Exchange Note or such Private
Exchange Note, as the case may be, has been disposed of in accordance with such
effective Registration Statement, (ii) such Note has been exchanged pursuant to
the Exchange Offer for an Exchange Note or Exchange Notes that may be resold
without restriction under state and federal securities laws, (iii) such Note,
Exchange Note or Private Exchange Note, as the case may be, ceases to be
outstanding for purposes of the Indenture or (iv) such Note, Exchange Note or
Private Exchange Note has been sold in compliance with Rule 144 or is salable
pursuant to Rule 144(k).
"Registration Default" shall have the meaning set forth in
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Section 4(a) hereof.
"Registration Statement" shall mean any appropriate
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registration statement of the Issuer covering any of the Registrable Notes filed
with the Commission under the Securities Act, and all amendments and supplements
to any such Registration Statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Requesting Participating Broker-Dealer" shall have the
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meaning set forth in Section 2(b) hereof.
"Rule 144" shall mean Rule 144 promulgated under the
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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 Commission
providing for offers and sales of securities made in compliance therewith
resulting in offers and sales by subsequent holders that are not affiliates of
an issuer of such securities being free of the registration and prospectus
delivery requirements of the Securities Act.
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"Rule 144A" shall mean Rule 144A promulgated under the
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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 Commission.
"Rule 415" shall mean Rule 415 promulgated under the
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Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission.
"Securities Act" shall mean the Securities Act of 1933, as
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amended, and the rules and regulations of the Commission promulgated thereunder.
"Shelf Filing Event" shall have the meaning set forth in
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Section 2(c) hereof.
"Shelf Registration" shall have the meaning set forth in
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Section 3(a) hereof.
"Shelf Registration Statement" shall mean a Registration
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Statement filed in connection with a Shelf Registration.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
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"Trustee" shall mean the trustee under the Indenture and the
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trustee (if any) under any indenture governing the Exchange Notes and Private
Exchange Notes.
"Underwritten registration or underwritten offering" shall
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mean a registration in which securities of the Issuer is sold to an underwriter
for reoffering to the public.
Section 2. Exchange Offer
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(a) The Issuer shall (i) file a Registration Statement (the
"Exchange Offer Registration Statement") within 75 days after the Issue Date
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with the Commission on an appropriate registration form with respect to a
registered offer (the "Exchange Offer") to exchange any and all of the
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Registrable Notes for a like aggregate principal amount of notes (the "Exchange
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Notes") that are identical in all material respects to the Notes (except that
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the Exchange Notes shall not contain terms with respect to transfer restrictions
or Liquidated Damages upon a Registration Default), (ii) use its reasonable best
efforts to cause the Exchange Offer Registration Statement to be declared
effective under the Securities Act within 150 days after the Issue Date and
(iii) use its reasonable best efforts to consummate the Exchange Offer within
180 days after the Issue Date. Upon the Exchange Offer Registration Statement
being declared effective by the Commission, the Issuer will offer the Exchange
Notes in exchange for surrender of the Notes. The Issuer shall keep the Exchange
Offer open for at least 20 Business Days (or longer if required by applicable
law) after the date notice of the Exchange Offer is mailed to Holders.
Each Holder that participates in the Exchange Offer will be
required to represent to the Issuer in writing that (i) any Exchange Notes to be
received by it will be acquired in the ordinary course of its business, (ii) it
has no arrangement or understanding with any Person to participate in the
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distribution (within the meaning of the Securities Act) of the Exchange Notes in
violation of the provisions of the Securities Act or, if it is an affiliate, it
will comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable, (iii) if such Holder is not a broker-
dealer, it is not engaged in, and does not intend to engage in, a distribution
of Exchange Notes, (iv) if such Holder is a broker-dealer that will receive
Exchange Notes for its own account in exchange for Notes that were acquired as a
result of market-making or other trading activities, it will deliver a
prospectus in connection with any resale of such Exchange Notes and (v) such
Holder has full power and authority to transfer the Notes in exchange for the
Exchange Notes and that the Issuer will acquire good and unencumbered title
thereto free and clear of any liens, restrictions, charges or encumbrances and
not subject to any adverse claims.
(b) The Issuer and the Initial Purchaser acknowledge that the staff of
the Commission has taken the position that any broker-dealer that elects to
exchange Notes that were acquired by such broker-dealer for its own account as a
result of market-making or other trading activities for Exchange Notes in the
Exchange Offer (a "Participating Broker-Dealer") may be deemed to be an
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"underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Notes (other than a resale of an unsold allotment
resulting from the original offering of the Notes).
The Issuer and the Initial Purchaser also acknowledge that the staff
of the Commission has taken the position that if the Prospectus contained in the
Exchange Offer Registration Statement includes a plan of distribution containing
a statement to the above effect and the means by which Participating Broker-
Dealers may resell the Exchange Notes, without naming the Participating Broker-
Dealers or specifying the amount of Exchange Notes owned by them, such
Prospectus may be delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligations under the Securities Act in connection with
resales of Exchange Notes for their own accounts, so long as the Prospectus
otherwise meets the requirements of the Securities Act.
In light of the foregoing, if requested by a Participating Broker-
Dealer (a "Requesting Participating Broker-Dealer"), the Issuer agrees to use
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its reasonable best efforts to keep the Exchange Offer Registration Statement
continuously effective for a period not to exceed 180 days after the date on
which the Exchange Registration Statement is declared effective, or such longer
period if extended pursuant to the last paragraph of Section 5 hereof (such
period, the "Applicable Period"), or such earlier date as all Requesting
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Participating Broker-Dealers shall have notified the Issuer in writing that such
Requesting Participating Broker-Dealers have resold all Exchange Notes acquired
in the Exchange Offer. The Issuer shall include a plan of distribution in such
Exchange Offer Registration Statement that meets the requirements set forth in
the preceding paragraph.
If, prior to consummation of the Exchange Offer, the Initial Purchaser
or any Holder, as the case may be, holds any Notes acquired by it that have, or
that are reasonably likely to be determined to have, the status of an unsold
allotment in an initial distribution, or if any Holder is not entitled to
participate in the Exchange Offer, the Issuer upon the request of the Initial
Purchaser or any such Holder, as the case may be, shall simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the
Initial Purchaser or any such Holder, as the case may be, in
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exchange (the "Private Exchange") for such Notes held by the Initial Purchaser
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or any such Holder, as the case may be, a like principal amount of notes (the
"Private Exchange Notes") of the Issuer that are identical in all material
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respects to the Exchange Notes except that the Private Exchange Notes may be
subject to restrictions on transfer and bear a legend to such effect. The
Private Exchange Notes shall be issued pursuant to the same indenture as the
Exchange Notes and bear the same ISIN number and Common Codes as the Exchange
Notes.
For each Note surrendered in the Exchange Offer, the Holder will
receive an Exchange Note having a principal amount equal to that of the
surrendered Note. Interest on each Exchange Note and Private Exchange Note
issued pursuant to the Exchange Offer and in the Private Exchange will accrue
from the last interest payment date on which interest was paid on the Notes
surrendered in exchange therefor or, if no interest has been paid on the Notes,
from the Issue Date.
Upon consummation of the Exchange Offer in accordance with this
Section 2, the Issuer shall have no further registration obligations other than
the Issuer's continuing registration obligations with respect to (i) Private
Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and
(iii) Notes or Exchange Notes as to which clause (c)(iii) of this Section 2
applies.
In connection with the Exchange Offer, the Issuer shall:
(1) mail or cause to be mailed to each Holder entitled to
participate in the Exchange Offer a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York;
(3) 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
(4) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer and the
Private Exchange, if any, the Issuer shall:
(1) accept for exchange all Notes validly tendered and not validly
withdrawn by the Holders pursuant to the Exchange Offer and the Private
Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation
all Notes so accepted for exchange; and
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(3) cause the Trustee to authenticate and deliver promptly to
each such Holder of Notes, Exchange Notes or Private Exchange Notes, as
the case may be, equal in principal amount to the Registrable Notes of
such Holder so accepted for exchange.
The Exchange Offer and the Private Exchange shall not be subject
to any conditions, other than that (i) the Exchange Offer or Private Exchange,
as the case may be, does not violate applicable law or any applicable
interpretation of the staff of the Commission, (ii) no action or proceeding
shall have been instituted or threatened in any court or by any governmental
agency which might materially impair the ability of the Issuer to proceed with
the Exchange Offer or the Private Exchange, and no material adverse development
shall have occurred in any existing action or proceeding with respect to the
Issuer and (iii) all governmental approvals shall have been obtained, which
approvals the Issuer deems necessary for the consummation of the Exchange Offer
or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be issued
under (i) the Indenture or (ii) an indenture identical in all material respects
to the Indenture (in either case, with such changes as are necessary to comply
with any requirements of the Commission to effect or maintain the qualification
thereof under the TIA) and which, in either case, has been qualified under the
TIA and shall provide that (a) the Exchange Notes shall not be subject to the
transfer restrictions set forth in the Indenture and (b) the Private Exchange
Notes shall be subject to the transfer restrictions set forth in the Indenture.
The Indenture or such indenture shall provide that the Exchange Notes, the
Private Exchange Notes and the Notes shall vote and consent together on all
matters as one class and that none of the Exchange Notes, the Private Exchange
Notes or the Notes will have the right to vote or consent as a separate class on
any matter.
(c) In the event that (i) any changes in law or the applicable
interpretations of the staff of the Commission do not permit the Issuer to
effect the Exchange Offer, (ii) for any reason the Exchange Offer is not
consummated within 180 days of the Issue Date, (iii) any Holder, other than the
Initial Purchaser, is prohibited by law or the applicable interpretations of the
staff of the Commission from participating in the Exchange Offer or does not
receive Exchange Notes on the date of the exchange that may be sold without
restriction under state and federal securities laws (other than due solely to
the status of such holder as an affiliate of the Issuer within the meaning of
the Securities Act) or (iv) the Initial Purchaser so requests with respect to
Notes or Private Exchange Notes that have, or that are reasonably likely to be
determined to have, the status of unsold allotments in an initial distribution
(each such event referred to in clauses (i) through (iv) of this sentence, a
"Shelf Filing Event"), then the Issuer shall file a Shelf Registration pursuant
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to Section 3 hereof.
Section 3. Shelf Registration
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If at any time a Shelf Filing Event shall occur, then:
(a) Shelf Registration. The Issuer shall file with the Commission
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a Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Registrable Notes not exchanged in the
Exchange Offer, Private Exchange Notes and Exchange Notes as to which Section
2(c)(iii) is applicable (the "Shelf Registration"). The Issuer shall use its
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reason-
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able best efforts to file with the Commission the Shelf Registration as promptly
as practicable. The Shelf Registration shall be on Form S-1 or another
appropriate form permitting registration of such Registrable Notes for resale by
Holders in the manner or manners designated by them (including, without
limitation, one or more underwritten offerings). The Issuer shall not permit any
securities other than the Registrable Notes to be included in the Shelf
Registration.
(b) The Issuer shall use its reasonable best efforts (x) to cause
the Shelf Registration to be declared effective under the Securities Act on or
prior to the later of 180 calendar days after the Issue Date or 90 days after
the Shelf Registration is required to be filed with the Commission and (y) to
keep the Shelf Registration continuously effective under the Securities Act for
the period ending on the date which is two years from the Issue Date, subject to
extension pursuant to the penultimate paragraph of Section 5 hereof (the
"Effectiveness Period"), or such shorter period ending when all Registrable
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Notes covered by the Shelf Registration have been sold in the manner set forth
and as contemplated in the Shelf Registration; provided, however, that (i) the
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Effectiveness Period in respect of the Shelf Registration shall be extended to
the extent required to permit dealers to comply with the applicable prospectus
delivery requirements of Rule 174 under the Securities Act and as otherwise
provided herein and (ii) the Issuer may suspend the effectiveness of the Shelf
Registration Statement by written notice to the Holders solely as a result of
the filing of a post-effective amendment to the Shelf Registration Statement to
incorporate annual audited financial information with respect to the Issuer
where such post-effective amendment is not yet effective and needs to be
declared effective to permit Holders to use the related Prospectus.
(c) Supplements and Amendments. The Issuer agrees to supplement
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or make amendments to the Shelf Registration Statement as and when required by
the rules, regulations or instructions applicable to the registration form used
for such Shelf Registration Statement or by the Securities Act or rules and
regulations thereunder for shelf registration, or if reasonably requested by the
Holders of a majority in aggregate principal amount of the Registrable Notes
covered by such Registration Statement or by any underwriter of such Registrable
Notes.
Section 4. Liquidated Damages
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(a) The Issuer and the Initial Purchaser agree that the Holders
will suffer damages if the Issuer fails to fulfill its obligations under Section
2 or Section 3 hereof and that it would not be feasible to ascertain the extent
of such damages with precision. Accordingly, the Issuer agrees that if:
(i) the Exchange Offer Registration Statement is not filed with
the Commission on or prior to the 75th day following the Issue Date or, if
that day is not a Business Day, the next day that is a Business Day,
(ii) the Exchange Offer Registration Statement is not declared
effective on or prior to the 150th day following the Issue Date or, if that
day is not a Business Day, the next day that is a Business Day,
(iii) the Exchange Offer is not consummated on or prior to the
180th day following the Issue Date, or, if that day is not a Business Day,
the next day that is a Business Day; or
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(iv) the Shelf Registration Statement is required to be filed
but is not declared effective by the later of 180 calendar days after the
Issue Date or 90 days after the Shelf Registration is required to be filed
with the Commission, or, if either such day is not a Business Day, the next
day that is a Business Day or is declared effective by such date but
thereafter ceases to be effective or usable, except if the Shelf
Registration ceases to be effective or usable as specifically permitted by
the penultimate paragraph of Section 5 hereof
(each such event referred to in clauses (i) through (iv) a "Registration
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Default"), liquidated damages in the form of additional cash interest
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("Liquidated Damages") will accrue on the affected Notes and the affected
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Exchange Notes, as applicable. The rate of Liquidated Damages will be 0.25% per
annum for the first 90-day period immediately following the occurrence of a
Registration Default, increasing by an additional 0.25% per annum with respect
to each subsequent 90-day period up to a maximum amount of additional interest
of 1.00% per annum, from and including the date on which any such Registration
Default shall occur to, but excluding, the earlier of (1) the date on which all
Registration Defaults have been cured or (2) the date on which all the Notes and
Exchange Notes otherwise become freely transferable by Holders other than
affiliates of the Issuer without further registration under the Securities Act.
If, after the cure of all Registration Defaults then in effect, there is a
subsequent Registration Default, the rate of Liquidated Damages for such
subsequent Registration Default shall initially be 0.25% regardless of the rate
in effect with respect to any prior Registration Default at the time of cure of
such Registration Default.
Notwithstanding the foregoing, (1) the amount of Liquidated
Damages payable shall not increase because more than one Registration Default
has occurred and is pending and (2) a Holder of Notes or Exchange Notes who is
not entitled to the benefits of the Shelf Registration Statement (i.e., such
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Holder has not elected to include information) shall not be entitled to
Liquidated Damages with respect to a Registration Default that pertains to the
Shelf Registration Statement.
(b) So long as Notes remain outstanding, the Issuer shall notify
the Trustee within five Business Days after each and every date on which an
event occurs in respect of which Liquidated Damages is required to be paid. Any
amounts of Liquidated Damages due pursuant to clauses (a)(i), (a)(ii), (a)(iii)
or (a)(iv) of this Section 4 will be payable in cash semi-annually on each
September 15 and March 15 (each a "Damages Payment Date"), commencing with the
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first such date occurring after any such Liquidated Damages commence to accrue,
to Holders to whom regular interest is payable on such Damages Payment Date with
respect to Notes that are Registrable Securities. The amount of Liquidated
Damages for Registrable Notes will be determined by multiplying the applicable
rate of Liquidated Damages by the aggregate principal amount of all such
Registrable Notes outstanding on the Damages Payment Date following such
Registration Default in the case of the first such payment of Liquidated Damages
with respect to a Registration Default (and thereafter at the next succeeding
Damages Payment Date until the cure of such Registration Default), multiplied by
a fraction, the numerator of which is the number of days such Liquidated Damages
rate was applicable during such period (determined on the basis of a 360-day
year comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
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Section 5. Registration Procedures
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In connection with the filing of any Registration Statement
pursuant to Section 2 or 3 hereof, the Issuer shall effect such registrations to
permit the sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Issuer hereunder, the
Issuer shall:
(a) Prepare and file with the Commission the Registration
Statement or Registration Statements prescribed by Section 2 or 3 hereof,
and use its reasonable best efforts to cause each such Registration
Statement to become effective and remain effective as provided herein;
provided, however, that if (1) such filing is pursuant to Section 3 hereof,
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or (2) a Prospectus contained in the 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 Notes during the Applicable Period relating thereto, before filing
any Registration Statement or Prospectus or any amendments or supplements
thereto, the Issuer shall furnish to and afford the Holders of the
Registrable Notes covered by such Registration Statement or each such
Participating Broker-Dealer, as the case may be, its counsel (if such
counsel is known to the Issuer) and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents (including
copies of any documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed (in each case at least five Business
Days prior to such filing or such later date as is reasonable under the
circumstances). The Issuer shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto if the Holders of a
majority in aggregate principal amount of the Registrable Notes covered by
such Registration Statement, or any such Participating Broker-Dealer, as
the case may be, its counsel, or the managing underwriters, if any, shall
reasonably object on a timely basis.
(b) Prepare and file with the Commission such amendments and post-
effective amendments to each Shelf Registration Statement or Exchange Offer
Registration Statement, as the case may be, as may be necessary to keep
such Registration Statement continuously effective for the Effectiveness
Period or the Applicable Period, as the case may be; cause the related
Prospectus to be supplemented by any Prospectus supplement required by
applicable law, and as so supplemented to be filed pursuant to Rule 424 (or
any similar provisions then in force) promulgated under the Securities Act;
and comply with the provisions of the Securities Act and the Exchange Act
applicable to it with respect to the disposition of all securities covered
by such Registration Statement as so amended or in such Prospectus as so
supplemented and with respect to the subsequent resale of any securities
being sold by a Participating Broker-Dealer covered by any such Prospectus,
in each case, in accordance with the intended methods of distribution set
forth in such Registration Statement or Prospectus, as so amended.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the 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 Notes during the Applicable Period relating thereto from whom
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the Issuer has received written notice that such Broker-Dealer will be a
Participating Broker-Dealer in the applicable Exchange Offer, notify the
selling Holders of Registrable Notes, or each such Participating Broker-
Dealer, as the case may be, their counsel (if such counsel is known to the
Issuer) and the managing underwriters, if any, as promptly as possible,
and, if requested by any such Person, confirm such notice in writing, (i)
when a Prospectus or any Prospectus supplement or post-effective amendment
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 (including in such notice a written statement that any
Holder may, upon request, obtain, at the sole expense of the Issuer, one
conformed copy of such Registration Statement or post-effective amendment
including financial statements and schedules, documents incorporated or
deemed to be incorporated by reference and exhibits), (ii) of the issuance
by the Commission of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of
any preliminary prospectus or the initiation of any proceedings for that
purpose, (iii) if at any time when a Prospectus is required by the
Securities Act to be delivered in connection with sales of the Registrable
Notes or resales of Exchange Notes by Participating Broker-Dealers the
representations and warranties of the Issuer contained in any agreement
(including any underwriting agreement) contemplated by Section 5(m)(i)
hereof cease to be true and correct in all material respects, (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 Notes or the Exchange Notes for offer
or sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose, (v) of the happening of any event, the
existence of any condition or any information becoming known to the Issuer
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 or amendments or supplements to such Registration
Statement, Prospectus or documents so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (vi) of the Issuer's
determination that a post-effective amendment to a Registration Statement
would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the 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 Notes during the Applicable Period, use its reasonable best
efforts to prevent the issuance of any order suspending the effectiveness
of a Registration Statement or of any order preventing or suspending the
use of a Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Notes or the Exchange Notes, as
the case may be, 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 practicable moment.
-12-
(e) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the 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 Notes during the Applicable Period and if reasonably
requested by the managing underwriter or underwriters (if any), the Holders
of a majority in aggregate principal amount of the Registrable Notes
covered by such Registration Statement or any Participating Broker-Dealer,
as the case may be, (i) promptly incorporate in such Registration Statement
or Prospectus a prospectus supplement or post-effective amendment such
information as the managing underwriter or underwriters (if any), such
Holders or any Participating Broker-Dealer, as the case may be (based upon
advice of counsel), determine is reasonably necessary to be included
therein and (ii) make all required filings of such prospectus supplement or
such post-effective amendment as soon as practicable after the Issuer has
received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment; provided, however, that the Issuer
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shall not be required to take any action hereunder that would, in the
written opinion of counsel to the Issuer, violate applicable laws.
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the 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 Notes during the Applicable Period, furnish to each selling
Holder of Registrable Notes or each such Participating Broker-Dealer, as
the case may be, who so requests, its counsel (if such counsel is known to
the Issuer) and each managing underwriter, if any, at the sole expense of
the Issuer, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if requested, all
documents incorporated or deemed to be incorporated therein by reference
and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the 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 Notes during the Applicable Period, deliver to each selling
Holder of Registrable Notes or each such Participating Broker-Dealer, as
the case may be, its respective counsel, and the underwriters, if any, at
the sole expense of the Issuer, as many copies of the Prospectus or
Prospectuses (including each form of preliminary prospectus) and each
amendment or supplement thereto and any documents incorporated by reference
therein as such Persons may reasonably request; and, subject to the last
paragraph of this Section 5, the Issuer hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
Holders of Registrable Notes or each such Participating Broker-Dealer, as
the case may be, and the underwriters or agents, if any, and dealers (if
any), in connection with the offering and sale of the Registrable Notes
covered by, or the sale by Participating Broker-Dealers of the Exchange
Notes pursuant to, such Prospectus and any amendment or supplement thereto.
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(h) Prior to any public offering of Registrable Notes or
Exchange Notes or any delivery of a Prospectus contained in the Exchange
Offer Registration Statement by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, use its reasonable
best efforts to register or qualify, and to cooperate with the selling
Holders of Registrable Notes or each such Participating Broker-Dealer, as
the case may be, the managing underwriter or underwriters, if any, and its
respective counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Notes or Exchange Notes, as the case may be, for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States
as any selling Holder, Participating Broker-Dealer, or the managing
underwriter or underwriters reasonably request; provided, however, that
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where Exchange Notes or Registrable Notes are offered other than through an
underwritten offering, the Issuer agrees to use its reasonable best efforts
to cause the Issuer's counsel to perform Blue Sky investigations and file
registrations and qualifications required to be filed pursuant to this
Section 5(h); keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of such Exchange Notes or Registrable Notes covered by the
applicable Registration Statement; provided, however, that the Issuer shall
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not be required to (A) qualify generally to do business in any jurisdiction
where it is not then so qualified, (B) take any action that would subject
it to general service of process in any such jurisdiction where it is not
then so subject or (C) subject itself to taxation in excess of a nominal
dollar amount in any such jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes to
be sold, which certificates shall not bear any restrictive legends and
shall be in a form eligible for deposit with the Euroclear System
("Euroclear") and Clearstream Banking, societe anonyme ("Clearstream"); and
enable such Registrable Notes to be in such denominations and registered in
such names as the managing underwriter or underwriters, if any, or selling
Holders may request at least five Business Days prior to any sale of such
Registrable Notes.
(j) Use its reasonable best efforts to cause the Registrable
Notes or Exchange Notes covered by any Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be reasonably necessary to enable the seller or sellers
thereof or the underwriter or underwriters, if any, to consummate the
disposition of such Registrable Notes or Exchange Notes, except as may be
required solely as a consequence of the nature of such selling Holder's
business, in which case the Issuer will cooperate in all reasonable
respects with the filing of such Registration Statement and the granting of
such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer
-14-
who seeks to sell Exchange Notes during the Applicable Period, upon the
occurrence of any event contemplated by Section 5(c)(v) or 5(c)(vi) hereof,
as promptly as practicable prepare and (subject to Section 5(a) and the
penultimate paragraph of this Section 5) file with the Commission, at the
sole expense of the Issuer, 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
purchaser of the Registrable Notes being sold thereunder or to the
purchaser of the Exchange Notes to whom such Prospectus will be delivered
by a Participating Broker-Dealer, any such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes in a form eligible for deposit with
Euroclear and Clearstream and (ii) provide an ISIN number and Common Code
for the Registrable Notes.
(m) In connection with any underwritten offering of Registrable Notes
pursuant to a Shelf Registration, enter into an underwriting agreement as
is customary in underwritten offerings of debt securities similar to the
Notes and take all such other actions as are reasonably requested by the
managing underwriter or underwriters in order to expedite or facilitate the
registration or the disposition of such Registrable Notes and, in such
connection, (i) make such representations and warranties to, and covenants
with, the underwriters with respect to the business of the Issuer and its
subsidiaries, as then conducted (including any acquired business,
properties or entity, if applicable), and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated
by reference therein, in each case, as are customarily made by the issuer
to underwriters in underwritten offerings of debt securities similar to the
Notes, and confirm the same in writing if and when requested; (ii) use its
reasonable best efforts to obtain the written opinions of counsel to the
Issuer and written updates thereof in form, scope and substance reasonably
satisfactory to the managing underwriter or underwriters, addressed to the
underwriters covering the matters customarily covered in opinions requested
in underwritten offerings and such other matters as may be reasonably
requested by the managing underwriter or underwriters; (iii) use its
reasonable best efforts to obtain "cold comfort" letters and updates
thereof in form, scope and substance reasonably satisfactory to the
managing underwriter or 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 or incorporated by
reference in the Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings; and (iv) if an underwriting agreement is entered
into, the same shall contain indemnification provisions and procedures no
less favorable than those set forth in Section 7 hereof (or such other
provisions and procedures acceptable to
-15-
Holders of a majority in aggregate principal amount of Registrable Notes
covered by such Registration Statement and the managing underwriter or
underwriters or agents) with respect to all parties to be indemnified
pursuant to said Section; provided that the Issuer shall not be required to
--------
provide indemnification to any underwriter selected in accordance with the
provisions of Section 9 hereof with respect to information relating to such
underwriter furnished in writing to the Issuer by or on behalf of such
underwriter expressly for inclusion in such Registration Statement. The
above shall be done at each closing under such underwriting agreement, or
as and to the extent required thereunder.
(n) If (1) a Shelf Registration is filed pursuant to Section 3 hereof
or (2) a Prospectus contained in the 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 Notes during the Applicable Period, make available for inspection
by any selling Holder of such Registrable Notes being sold or each such
Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Notes, if any, and any
attorney, accountant or other agent retained by any such selling Holder or
each such Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept,
----------
during reasonable business hours, all financial and other records,
pertinent corporate documents and instruments of the Issuer and its
subsidiaries (collectively, the "Records") as shall be reasonably necessary
-------
to enable them to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the Issuer and its
subsidiaries to supply all information reasonably requested by any such
Inspector in connection with such Registration Statement and Prospectus.
Each Inspector shall agree in writing that it will keep the Records
confidential and that it will not disclose, or use in connection with any
market transactions in violation of any applicable securities laws, any
Records that the Issuer determines, in good faith, to be confidential and
that it notifies the Inspectors in writing are confidential unless (i) the
disclosure of such Records is necessary to avoid or correct a misstatement
or omission in such Registration Statement or Prospectus, (ii) the release
of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction, (iii) disclosure of such information is
necessary or advisable in the opinion of counsel for an Inspector in
connection with any action, claim, suit or proceeding, directly or
indirectly, involving or potentially involving such Inspector and arising
out of, based upon, relating to, or involving this Agreement or the
Purchase Agreement, or any transactions contemplated hereby or thereby or
arising hereunder or thereunder, or (iv) the information in such Records
has been made generally available to the public; provided, however, that
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(i) each Inspector shall agree to use reasonable best efforts to provide
notice to the Issuer of the potential disclosure of any information by such
Inspector pursuant to clause (i), (ii) or (iii) of this sentence to permit
the Issuer to obtain a protective order (or waive the provisions of this
paragraph (n)) and (ii) each such Inspector shall take such actions as are
reasonably necessary to protect the confidentiality of such information (if
practicable) to the extent such action is otherwise not inconsistent with,
an impairment of or in derogation of the rights and interests of the Holder
or any Inspector.
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(o) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof to be qualified under the TIA
not later than the effective date of the Exchange Offer or the first
Registration Statement relating to the Registrable Notes; and in connection
therewith, cooperate with the trustee under any such indenture and the
Holders of the Registrable Notes or Exchange Notes, as applicable, 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 Commission to enable such
indenture to be so qualified in a timely manner.
(p) Comply with all applicable rules and regulations of the
Commission and make generally available to the Issuer's securityholders
earnings statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated
under the Securities Act) no later than 45 days after the end of any 12-
month period (or 90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Notes or Exchange Notes are sold to underwriters in a
firm commitment or best efforts underwritten offering and (ii) if not sold
to underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Issuer after the effective date of a
Registration Statement, which statements shall cover said 12-month periods
consistent with the requirements of Rule 158.
(q) Upon the request of a Holder, upon consummation of the Exchange
Offer or a Private Exchange, use its reasonable best efforts to obtain an
opinion of counsel to the Issuer, in a form customary for underwritten
transactions, addressed to the Trustee for the benefit of all Holders of
Registrable Notes participating in the Exchange Offer or the Private
Exchange, as the case may be, that the Exchange Notes or Private Exchange
Notes, as the case may be, and the related indenture constitute legal,
valid and binding obligations of the Issuer, enforceable against the Issuer
in accordance with their respective terms, subject to customary exceptions
and qualifications.
(r) If the Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Notes by Holders to the Issuer (or to such
other Person as directed by the Issuer) in exchange for the Exchange Notes
or the Private Exchange Notes, as the case may be, ▇▇▇▇, or cause to be
marked, on such Registrable Notes that such Registrable Notes are being
cancelled in exchange for the Exchange Notes or the Private Exchange Notes,
as the case may be; provided that in no event shall such Registrable Notes
--------
be marked as paid or otherwise satisfied.
(s) Use its reasonable best efforts to take all other steps
reasonably necessary or advisable to effect the registration of the
Exchange Notes and/or Registrable Notes covered by a Registration Statement
contemplated hereby.
-17-
The Issuer may require each seller of Registrable Notes or
Exchange Notes as to which any registration is being effected to furnish to the
Issuer such information regarding such seller and the distribution of such
Registrable Notes or Exchange Notes as the Issuer may, from time to time,
reasonably request. The Issuer may exclude from such registration the
Registrable Notes of any seller so long as such seller fails to furnish such
information within a reasonable time after receiving such request and in the
event of such an exclusion, the Issuer shall have no further obligation under
this Agreement (including, without limitation, the obligations under Section 4)
with respect to such seller or any subsequent Holder of such Registrable Notes.
Each seller as to which any Shelf Registration is being effected agrees to
furnish promptly to the Issuer all information required to be disclosed in order
to make any information previously furnished to the Issuer by such seller not
materially misleading.
If any such Registration Statement refers to any Holder by name
or otherwise as the holder of any securities of the Issuer, then such Holder
shall have the right to require (i) the insertion therein of language, in form
and substance reasonably satisfactory to such Holder, to the effect that the
holding by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the securities
covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Issuer, or (ii) in
the event that such reference to such Holder by name or otherwise is not
required by the Securities Act or any similar federal statute then in force, the
deletion of the reference to such Holder in any amendment or supplement to the
applicable Registration Statement filed or prepared subsequent to the time that
such reference ceases to be required.
Each Holder of Registrable Notes and each Participating Broker-
Dealer agrees by acquisition of such Registrable Notes or Exchange Notes that,
upon actual receipt of any notice from the Issuer (x) of the happening of any
event of the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv), or 5(c)(v)
hereof, or (y) that the Board of Directors of the Issuer (the "Board of
--------
Directors") has resolved that the Issuer has a bona fide business purpose for
---------
doing so, then the Issuer may delay the filing or the effectiveness of the
Exchange Offer Registration Statement or the Shelf Registration Statement (if
not then filed or effective, as applicable) and shall not be required to
maintain the effectiveness thereof or amend or supplement the Exchange Offer
Registration Statement or the Shelf Registration, in all cases, for a period (a
"Delay Period") expiring upon the earlier to occur of (i) in the case of the
------------
immediately preceding clause (x), such Holder's or Participating Broker-Dealer's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(k) hereof or until it is advised in writing (the "Advice") by the
------
Issuer that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto or (ii) in the case of
the immediately preceding clause (y), the date which is the earlier of (A) the
date on which such business purpose ceases to interfere with the Issuer's
obligations to file or maintain the effectiveness of any such Registration
Statement pursuant to this Agreement or (B) 60 days after the Issuer notifies
the Holders of such good faith determination. There shall not be more than 60
days of Delay Periods during any 12-month period. Each of the Effectiveness
Period and the Applicable Period, if applicable, shall be extended by the number
of days during any Delay Period. Any Delay Period will not alter the obligations
of the Issuer to pay Liquidated Damages under the circumstances set forth in
Section 4 hereof.
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In the event of any Delay Period pursuant to clause (y) of the
preceding paragraph, notice shall be given as soon as practicable after the
Board of Directors makes such a determination of the need for a Delay Period and
shall state, to the extent practicable, an estimate of the duration of such
Delay Period and shall advise the recipient thereof of the agreement of such
Holder provided in the next succeeding sentence. Each Holder, by his acceptance
of any Registrable Note, agrees that during any Delay Period, each Holder will
discontinue disposition of such Notes or Exchange Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by such Holder
or Participating Broker-Dealer, as the case may be.
Section 6. Registration Expenses
---------------------
All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuer (other than any underwriting
discounts or commissions) shall be borne by the Issuer, whether or not the
Exchange Offer Registration Statement or the Shelf Registration is filed or
becomes effective or the Exchange Offer is consummated, including, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses of compliance with state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of counsel in
connection with Blue Sky qualifications of the Registrable Notes or Exchange
Notes and determination of the eligibility of the Registrable Notes or Exchange
Notes for investment under the laws of such jurisdictions (x) where the holders
of Registrable Notes are located, in the case of an Exchange Offer, or (y) as
provided in Section 5(h) hereof, in the case of a Shelf Registration or in the
case of Exchange Notes to be sold by a Participating Broker-Dealer during the
Applicable Period)), (ii) printing expenses, including, without limitation,
expenses of printing certificates for Registrable Notes or Exchange Notes in a
form eligible for deposit with Euroclear and Clearstream and of printing
prospectuses if the printing of prospectuses is requested by the managing
underwriter or underwriters, if any, or by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any Registration
Statement or in respect of Exchange Notes to be sold by any Participating
Broker-Dealer during the Applicable Period, as the case may be, (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Issuer and reasonable fees and disbursements of one special counsel for all of
the sellers of Registrable Notes (exclusive of any counsel retained pursuant to
Section 7 hereof), (v) fees and disbursements of all independent certified
public accountants referred to in Section 5(m)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) Securities Act liability
insurance, if the Issuer desires such insurance, (vii) fees and expenses of all
other Persons retained by the Issuer, (viii) internal expenses of the Issuer
(including, without limitation, all salaries and expenses of officers and
employees of the Issuer performing legal or accounting duties), (ix) the expense
of any annual audit, (x) the fees and expenses incurred in connection with the
listing of the securities to be registered on any securities exchange, and the
obtaining of a rating of the securities, in each case, if applicable, and (xi)
the expenses relating to printing, word processing and distributing all
Registration Statements, underwriting agreements, indentures and any other
documents necessary in order to comply with this Agreement. Notwithstanding the
foregoing or anything to the contrary, each Holder shall pay all underwriting
discounts and commissions of any underwriters with respect to any Registrable
Notes sold by or on behalf of it.
-19-
Section 7. Indemnification
---------------
(a) The Issuer agrees to indemnify and hold harmless each
Holder of Registrable Notes and each Participating Broker-Dealer selling
Exchange Notes during the Applicable Period, each Person, if any, who controls
any such Person within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act, the agents, employees, officers and directors
of each Holder and each such Participating Broker-Dealer and the agents,
employees, officers and directors of any such controlling Person (each, a
"Participant") from and against any and all losses, liabilities, claims, damages
-----------
and expenses (including, but not limited to, reasonable attorneys' fees and any
and all reasonable out-of-pocket expenses actually incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all reasonable amounts paid in settlement of any
claim or litigation (in the manner set forth in clause (c) below))
(collectively, "Losses") to which they or any of them may become subject under
------
the Securities Act, the Exchange Act or otherwise insofar as such Losses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) or Prospectus (as amended or supplemented
if the Issuer shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by, arising out of or based upon any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the case of the
Prospectus, in the light of the circumstances under which they were made, not
misleading, provided that (i) the foregoing indemnity shall not be available to
--------
any Participant insofar as such Losses are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to such Participant furnished to the Issuer
in writing by or on behalf of such Participant expressly for use therein, and
(ii) that the foregoing indemnity with respect to any preliminary prospectus
shall not inure to the benefit of any Participant from whom the Person asserting
such Losses purchased Registrable Notes if (x) it is established in the related
proceeding that such Participant failed to send or give a copy of the Prospectus
(as amended or supplemented if such amendment or supplement was furnished to
such Participant prior to the written confirmation of such sale) to such Person
with or prior to the written confirmation of such sale, if required by
applicable law, and (y) the untrue statement or omission or alleged untrue
statement or omission was completely corrected in the Prospectus (as amended or
supplemented if amended or supplemented as aforesaid) and such Prospectus does
not contain any other untrue statement or omission or alleged untrue statement
or omission that was the subject matter of the related proceeding. This
indemnity agreement will be in addition to any liability that the Issuer may
otherwise have, including, but not limited to, liability under this Agreement.
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless the Issuer, each Person, if any, who controls the
Issuer within the meaning of Section 15 of the Securities Act or Section 20(a)
of the Exchange Act, and each of its, employees, officers and directors and the
agents, employees, officers and directors of any such controlling Person from
and against any Losses to which they or any of them may become subject under the
Securities Act, the Exchange Act or otherwise insofar as such Losses (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) or Prospectus (as amended or supplemented
if the Issuer shall have fur-
-20-
nished any amendments or supplements thereto) or any preliminary prospectus, or
caused by, arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the case of the Prospectus, in the light of the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that any such Loss arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information relating to
such Participant furnished in writing to the Issuer by or on behalf of such
Participant expressly for use therein.
(c) Promptly after receipt by an indemnified party under
subsection 7(a) or 7(b) above of notice of the commencement of any action, suit
or proceeding (collectively, an "action"), such indemnified party shall, if a
------
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in
writing of the commencement of such action (but the failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
that it may have under this Section 7 except to the extent that it has been
prejudiced in any material respect by such failure). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement of such action, the indemnifying party will be entitled to
participate in such action, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense of such action with counsel
reasonably satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ its
or their own counsel in any such action, but the reasonable fees and expenses of
such counsel shall be at the expense of such indemnified party or parties unless
(i) the employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) the named parties to such action (including any impleaded
parties) include such indemnified party and the indemnifying party or parties
(or such indemnifying parties have assumed the defense of such action), and such
indemnified party or parties shall have reasonably concluded, after consultation
with counsel, that there may be defenses available to it or them that are
different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such reasonable fees and expenses of counsel
shall be borne by the indemnifying parties. In no event shall the indemnifying
party be liable for the reasonable fees and expenses of more than one counsel
(together with appropriate local counsel) at any time for all indemnified
parties in connection with any one action or separate but substantially similar
or related actions arising in the same jurisdiction out of the same general
allegations or circumstances. Any such separate firm for the Participants shall
be designated in writing by Participants who sold a majority in interest of
Registrable Notes sold by all such Participants and shall be reasonably
acceptable to the Issuer and any such separate firm for the Issuer, its
affiliates, officers, directors, representatives, employees and agents and such
control Person of the Issuer shall be designated in writing by the Issuer and
shall be reasonable acceptable to the Holders. An indemnifying party shall not
be liable for any settlement of any claim or action effected without its written
consent, which consent may not be unreasonably withheld. No indemnifying party
shall, without the prior written consent of the indemni-
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fied party, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) In order to provide for contribution in circumstances in
which the indemnification provided for in this Section 7 is for any reason held
to be unavailable from the indemnifying party, or is insufficient to hold
harmless a party indemnified under this Section 7, each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such aggregate Losses (i) in such proportion as is appropriate to reflect the
relative benefits received by each indemnifying party, on the one hand, and each
indemnified party, on the other hand, from the sale of the Notes to the Initial
Purchaser or the resale of the Registrable Notes by such Holder, as applicable,
or (ii) if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of each indemnified party, on
the one hand, and each indemnifying party, on the other hand, in connection with
the statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. The relative benefits received by the Issuer,
on the one hand, and each Participant, on the other hand, shall be deemed to be
in the same proportion as (x) the total proceeds from the sale of the Notes to
the Initial Purchaser (net of discounts and commissions but before deducting
expenses) received by the Issuer are to (y) the total net profit received by
such Participant in connection with the sale of the Registrable Notes. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Issuer or such Participant and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission or alleged statement or omission.
(e) The parties agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to above. Notwithstanding the provisions
of this Section 7, (i) in no case shall any Participant be required to
contribute any amount in excess of the amount by which the net profit received
by such Participant in connection with the sale of the Registrable Notes exceeds
the amount of any damages that such Participant has otherwise been required to
pay by reason of any untrue or alleged untrue statement or omission or alleged
omission and (ii) 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. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 7, notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation it
or they may have under this Section 7 or otherwise, except to the extent that it
has been prejudiced in any material respect by such failure; provided, however,
-------- -------
that no additional notice shall be required with respect to any action for which
notice has been given under this Section 7 for purposes of indemnification.
Anything in this section to the contrary notwithstanding, no party shall be
liable for contribution with respect to any
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action or claim settled without its written consent, provided, however, that
-------- -------
such written consent was not unreasonably withheld.
Section 8. Rules 144 and 144A
------------------
The Issuer covenants that it will file the reports required, if
any, to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the Commission thereunder in a timely manner in
accordance with the requirements of the Securities Act and the Exchange Act and,
if at any time the Issuer is not required to file such reports, it will, upon
the request of any Holder or beneficial owner of Registrable Notes, make
available such information necessary to permit sales pursuant to Rule 144A under
the Securities Act. The Issuer further covenants that for so long as any
Registrable Notes remain outstanding it will take such further action as any
Holder of Registrable Notes may reasonably request from time to time to enable
such Holder to sell Registrable Notes without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144(k) and Rule
144A under the Securities Act, as such Rules may be amended from time to time,
or (b) any similar rule or regulation hereafter adopted by the Commission.
Section 9. Underwritten Registrations
--------------------------
If any of the Registrable Notes 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
Notes included in such offering and shall be reasonably acceptable to the
Issuer.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder if such Holder does not (a) agree to sell
such Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) complete and execute all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
Section 10. Miscellaneous
-------------
(a) No Inconsistent Agreements. The Issuer has not, as of the
--------------------------
date hereof, and shall not, after the date of this Agreement, entered into any
agreement with respect to any of its securities that is inconsistent with the
rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not conflict with and are not inconsistent with, in any
material respect, the rights granted to the holders of any of the Issuer's other
issued and outstanding securities under any such agreements. The Issuer has not
entered and will not enter into any agreement with respect to any of its
securities which will grant to any Person piggy-back registration rights with
respect to any Registration Statement.
(b) Adjustments Affecting Registrable Notes. The Issuer shall
---------------------------------------
not, directly or indirectly, take any action with respect to the Registrable
Notes as a class that would adversely affect the
-23-
ability of the Holders of Registrable Notes to include such Registrable Notes in
a registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement
----------------------
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given except pursuant to a
written agreement duly signed and delivered by (I) the Issuer and (II)(A) the
Holders of not less than a majority in aggregate principal amount of the then
outstanding Registrable Notes and (B) in circumstances that would adversely
affect the Participating Broker-Dealers, the Participating Broker-Dealers
holding not less than a majority in aggregate principal amount of the Exchange
Notes held by all Participating Broker-Dealers; provided, however, that Section
-------- -------
7 and this Section 10(c) may not be amended, modified or supplemented except
pursuant to a written agreement duly signed and delivered by the Issuer and each
Holder and each Participating Broker-Dealer (including any Person who was a
Holder or Participating Broker-Dealer of Registrable Notes or Exchange Notes, as
the case may be, disposed of pursuant to any Registration Statement) affected by
any such amendment, modification, waiver or supplement. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of Registrable
Notes whose securities are being sold pursuant to a Registration Statement and
that does not directly or indirectly affect, impair, limit or compromise the
rights of other Holders of Registrable Notes may be given by Holders of at least
a majority in aggregate principal amount of the Registrable Notes being sold
pursuant to such Registration Statement.
(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, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of the Registrable Notes or any
Participating Broker-Dealer, at the most current address of such
Holder or Participating Broker-Dealer, as the case may be, set forth
on the records of the registrar under the Indenture.
(ii) if to the Issuer, at the address as follows:
Sola International Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
(iii) if to the Initial Purchaser, at the address as follows:
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UBS AG,
acting through its business group,
UBS Warburg
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: +44-20-7568 5266
Fax number: +44-20-7568 5215
Attention: Syndicate Department
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; when receipt is
acknowledged by the recipient's telecopier machine, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall
be concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner 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
hereto, the Holders and the Participating Broker-Dealers; provided, however,
-------- -------
that this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or
assign holds Registrable Notes.
(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. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
(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, cove-
-25-
nants and restrictions without including any of such that may be hereafter
declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Issuer or Its Affiliates. Whenever
-----------------------------------------------
the consent or approval of Holders of a specified percentage of Registrable
Notes is required hereunder, Registrable Notes held by the Issuer or any of its
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(k) Third-Party Beneficiaries. Holders and beneficial owners of
-------------------------
Registrable Notes and Participating Broker-Dealers are intended third-party
beneficiaries of this Agreement, and this Agreement may be enforced by such
Persons. No other Person is intended to be, or shall be construed as, a third-
party beneficiary of this Agreement.
(l) Attorneys' Fees. As between the parties to this Agreement,
---------------
in any action or proceeding brought to enforce any provision of this Agreement,
or where any provision hereof is validly asserted as a defense, the successful
party shall be entitled to recover reasonable attorneys' fees actually incurred
in addition to its costs and expenses and any other available remedy.
(m) Entire Agreement. This Agreement, together with the Purchase
----------------
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Issuer on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein
and replaced hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
SOLA INTERNATIONAL INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
UBS AG,
acting through its business group,
UBS WARBURG
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director