Exhibit 10.3
EXECUTION COPY
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100,000,000 12 1/2% Senior Subordinated Notes due 2010
REGISTRATION RIGHTS AGREEMENT
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Dated as of June 13, 2000
among
SWT Finance B.V.,
as Issuer
Weigh-Tronix, LLC, SWT Holdings B.V., Weigh-Tronix, Inc., Weigh-Tronix UK
Limited, Weigh-Tronix Canada, ULC, ▇▇▇▇▇▇ Weigh-Tronix Ltd, ▇▇▇▇▇▇ Housewares
Ltd, ▇▇▇▇▇▇ Housewares Holdings Ltd, Berkel Products Co. Limited, Berkel USA,
Inc., Berkel, Inc., Berkel (Ireland) Limited, GEC ▇▇▇▇▇ Limited, GEC ▇▇▇▇▇
Properties Limited, GEC ▇▇▇▇▇ International Limited, Mecmesin, Inc.,
Weigh-Tronix Delaware, Inc. as Guarantors
and
▇▇▇▇▇▇ Brothers International (Europe)
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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 Statement...................................................... 8
4. Liquidated Damages................................................................ 9
5. Registration Procedures........................................................... 11
6. Registration Expenses............................................................. 18
7. Indemnification and Contribution.................................................. 19
8. Rule 144A......................................................................... 22
9. Underwritten Registrations........................................................ 23
10 Miscellaneous..................................................................... 23
(a) No Inconsistent Agreements.................................................. 23
(b) Adjustments Affecting Transfer Restricted Securities........................ 23
(c) Amendments and Waivers...................................................... 24
(d) Notices..................................................................... 24
(e) Successors and Assigns...................................................... 25
(f) Counterparts................................................................ 25
(g) Headings.................................................................... 25
(h) GOVERNING LAW............................................................... 26
(i) Submission to Jurisdiction; Appointment of Agent for Service; Waiver........ 26
(j) Currency Indemnity.......................................................... 26
(k) Severability................................................................ 27
(l) Securities Held by the Issuer, the Guarantors or Their Respective Affiliates 27
(m) Third Party Beneficiaries................................................... 27
(n) Entire Agreement............................................................ 27
i
Exhibit 10.3
REGISTRATION RIGHTS AGREEMENT, dated as of June 13, 2000 (this
"Agreement"), among SWT Finance B.V., a limited liability company organized
under the laws of The Netherlands (the "Issuer"), Weigh-Tronix, LLC, a limited
liability company organized under the laws of the State of Delaware (the
"Company"), SWT Holdings B.V., Weigh-Tronix, Inc., Weigh-Tronix UK Limited,
Weigh-Tronix Canada ULC, ▇▇▇▇▇▇ Weigh-Tronix Ltd, ▇▇▇▇▇▇ Housewares Ltd, ▇▇▇▇▇▇
Housewares Holdings Ltd, Berkel Products Co. Limited, Berkel USA, Inc., Berkel,
Inc., Berkel (Ireland) Limited, GEC ▇▇▇▇▇ Limited, GEC ▇▇▇▇▇ Properties Limited,
GEC ▇▇▇▇▇ International Limited, Mecmesin, Inc. and Weigh-Tronix Delaware, Inc.
(together with the Company, the "Guarantors") and ▇▇▇▇▇▇ Brothers International
(Europe) (the "Initial Purchaser").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of June 2, 2000 (the "Purchase Agreement"), among the
Issuer, the Guarantors and the Initial Purchaser, which provides for the sale by
the Issuer to the Initial Purchaser of 100,000,000 aggregate principal amount of
its 12 1/2% Senior Subordinated Notes due 2010 (the "Original Notes"), fully and
unconditionally guaranteed on a senior subordinated basis (the "Original
Guarantees" and, together with the Original Notes, the "Original Securities") by
the Guarantors. In order to induce the Initial Purchaser to enter into the
Purchase Agreement, the Issuer and the Guarantors have agreed to provide the
registration rights set forth in this Agreement for the benefit of the Initial
Purchaser and its direct and indirect transferees and assigns. The execution
and delivery of this Agreement is a condition to the Initial Purchaser's
obligations under the Purchase Agreement. Capitalized terms used but not
specifically defined herein have the respective meanings ascribed thereto in the
Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
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As used in this Agreement, the following terms shall have the
following meanings:
"Advice": See Section 5 hereof.
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"Agreement": See the first introductory paragraph hereto.
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"Applicable Period": See Section 2(b) hereof.
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"Authenticating Agent": The Authenticating Agent as defined in the
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Indenture.
"Business Day": a day other than a Saturday, Sunday or other day on
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which commercial banking institutions are authorized or required by law to
close in New York City or Amsterdam.
"Company": See the first introductory paragraph hereto.
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"DTC": The Depository Trust Company.
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"Effectiveness Period": See Section 3(a) hereof.
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"Effectiveness Target Date": The 180th day after the Issue Date.
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"Event Date": See Section 4(b) hereof.
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"Exchange Act": The Securities Exchange Act of 1934, as amended, and
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the rules and regulations of the SEC promulgated thereunder.
"Exchange Guarantees": See Section 2(a) hereof.
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"Exchange Notes": See Section 2(a) hereof.
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"Exchange Offer": See Section 2(a) hereof.
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"Exchange Offer Registration Statement": See Section 2(a) hereof.
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"Filing Date": The 90th day after the Issue Date.
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"Guarantees": See the second introductory paragraph hereto.
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"Holder": Any holder of Transfer Restricted Securities.
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"Indenture": The indenture, dated the date hereof (the "Indenture"),
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among the Issuer, the Guarantors and Bankers Trust Company, as trustee
thereunder, pursuant to which the New Securities are to be issued, as such
Indenture is amended or supplemented from time to time in accordance with
the terms thereof.
"Initial Purchaser": See the first introductory paragraph hereto.
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"Inspectors": See Section 5(o) hereof.
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"Issue Date": The date of the issuance of the Original Securities
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under the Indenture.
"Liquidated Damages": See Section 4(a) hereof.
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"NASD": See Section 5(s) hereof.
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"New Securities": The Exchange Notes and related Exchange Guarantees.
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"Original Guarantees": See the second introductory paragraph hereto.
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"Original Notes": See the second introductory paragraph hereto.
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"Original Securities": The Original Notes and related Original
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Guarantees.
"Participant": See Section 7(a) hereof.
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"Participating Broker-Dealer": See Section 2(b) hereof.
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"Person": An individual, trustee, corporation, partnership, limited
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liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
"Private Exchange": See Section 2(b) hereof.
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"Private Exchange Securities": See Section 2(b) hereof.
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"Prospectus": The prospectus included in any Registration Statement
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(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": See the second introductory paragraph hereto.
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"Records": See Section 5(o) hereof.
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"Registration Statement": Any registration statement of the Issuer
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and the Guarantors, including, but not limited to, the Exchange Offer
Registration Statement or the Shelf Registration Statement, filed with the
SEC pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statement, including post-
effective amendments, all exhibits, and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
"Rule 144": Rule 144 promulgated under the Securities Act, as such
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Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and
sales of securities made in compliance therewith resulting in offers and
sales by subsequent holders that are not affiliates of an issuer of such
securities being free of the registration and prospectus delivery
requirements of the Securities Act.
"Rule 144A": Rule 144A promulgated under the Securities Act, as such
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Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC.
"Rule 415": Rule 415 promulgated under the Securities Act, as such
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Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
"SEC": The U.S. Securities and Exchange Commission.
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"Securities Act": The U.S. Securities Act of 1933, as amended, and
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the rules and regulations of the SEC promulgated thereunder.
"Shelf Notice": See Section 2(c) hereof.
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"Shelf Registration Statement": See Section 3(a) hereof.
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"Transfer Restricted Securities": Each Original Security until the
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earliest to occur of (i) the date on which such Original Security has been
exchanged by a Person (other than a Participating Broker-Dealer) for a New
Security in the Exchange Offer, (ii) following the exchange by a
Participating Broker-Dealer in the Exchange Offer of such Original Security
for one or more New Securities, the date on which such New Securities are
sold to a purchaser who receives from such Participating Broker-Dealer on
or prior to the date of such sale a copy of the prospectus contained in the
Exchange Offer Registration Statement, (iii) the date on which such
Original Security has been effectively registered under the Securities Act
and disposed of in accordance with the Shelf Registration Statement or (iv)
the date on which such Original Security is eligible for distribution to
the public pursuant to Rule 144 under the Securities Act.
"Trust Indenture Act": The Trust Indenture Act of 1939, as amended.
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"Trustee": The trustee under the Indenture and, if existent, the
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trustee under any indenture governing the New Securities and Private
Exchange Securities (if any).
"underwritten registration or underwritten offering": A registration
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in which securities of the Issuer or the Guarantors are sold to an
underwriter for reoffering to the public.
2. Exchange Offer
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(a) The Issuer and the Guarantors agree to file at their sole cost and
expense with the SEC no later than the Filing Date, unless prohibited by
applicable law or SEC policy, an offer to exchange (the "Exchange Offer") any
and all of the Transfer Restricted Securities (other than Private Exchange
Securities, if any) for a like aggregate principal amount of the same series of
notes of the Issuer, which are substantially identical in all material respects
to the Original Notes (the "Exchange Notes"), and guarantees which are
substantially identical to the Original Guarantees (the "Exchange Guarantees"
and, together with the Exchange Notes, the "New Securities) (and which are
entitled to the benefits of the applicable Indenture or a trust indenture which
is substantially identical in all material respects to such Indenture (other
than such changes to the applicable Indenture or any such identical trust
indenture as are necessary to comply with any requirements of the SEC to effect
or maintain the qualification thereof under the Trust Indenture Act) and which,
in either case, has been qualified under the Trust Indenture Act), except that
the New Securities (other than Private Exchange Securities, if any) shall have
been registered pursuant to an effective Registration Statement under the
Securities Act and shall contain no restrictive legend thereon. The Exchange
Offer shall be registered under the Securities Act on the appropriate form (the
"Exchange Offer Registration Statement") and shall comply with all applicable
tender offer rules and regulations under the Exchange Act. Each of the Issuer
and the Guarantors agrees to: (i) use its best efforts to cause the Exchange
Offer Registration Statement to be declared effective under the Securities Act
on or before the Effectiveness Target Date; (ii) keep the Exchange Offer open
for at least 20 business days (or longer if required by applicable law) after
the date that notice of the Exchange Offer is mailed to Holders; (iii) (A) file
all pre-effective amendments to such Registration Statement as may be
necessary in order to cause such Registration Statement to become effective, (B)
file, if applicable, a post-effective amendment to such Registration Statement
pursuant to Rule 430A under the Securities Act and (C) cause all necessary
filings in connection with the registration and qualification of the New
Securities to be made under the blue sky laws of such jurisdictions as are
necessary to permit consummation of the Exchange Offer; and (iv) use its
reasonable best efforts to consummate the Exchange Offer on or prior to 30
business days after the date on which the Exchange Offer Registration Statement
is declared effective by the SEC. Upon the Exchange Offer Registration Statement
being declared effective, the Issuer and the Guarantors will offer the New
Securities in exchange for surrender of the Original Securities. If, after such
Exchange Offer Registration Statement is declared effective by the SEC, the
Exchange Offer or the issuance of the New Securities thereunder is interfered
with by any stop order, injunction or other order or requirement of the SEC or
any other governmental agency or court, such Exchange Offer Registration
Statement shall be deemed not to have become effective for purposes of this
Agreement. Each Holder who participates in the Exchange Offer will be required
to represent that (i) any New Securities 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 distribution (within the meaning of the
Securities Act) of the New Securities, (iii) it is not a broker-dealer that
acquired Original Securities directly from the Issuer, (iv) it is not an
"affiliate" (as defined in Rule 405 under the Securities Act) of the Issuer or
any of the Guarantors or, if it is such an affiliate, it will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable and (v) it is not acting on behalf of any Person who could not
truthfully make the foregoing representations. If such Holder is not a
broker-dealer, such Holder will be required to represent that it is not engaged
in, and does not intend to engage in, the distribution of the New Securities. If
such Holder is a broker- dealer that will receive New Securities for its own
account in exchange for Original Securities that were acquired as a result of
market-making activities or other trading activities, it will be required to
acknowledge that it will deliver a prospectus in connection with any resale of
such New Securities. Upon consummation of the Exchange Offer in accordance with
this Section 2, the Issuer and the Guarantors shall have no further obligation
to register Transfer Restricted Securities (other than Private Exchange
Securities and other than in respect of any New Securities as to which clause
2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than
the New Securities shall be included in the Exchange Offer Registration
Statement.
(b) The Issuer and the Guarantors shall include within the Prospectus
contained in the Exchange Offer Registration Statement a section entitled "Plan
of Distribution", reasonably acceptable to the Initial Purchaser, which shall
contain a summary statement of the positions taken or policies made by the Staff
of the SEC with respect to the potential "underwriter" status of any broker-
dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange
Act) of New Securities received by such broker-dealer in the Exchange Offer (a
"Participating Broker-Dealer"), whether such positions or policies have been
publicly disseminated by the Staff of the SEC or such positions or policies, in
the judgment of the Initial Purchaser, represent the prevailing views of the
Staff of the SEC. Such "Plan of Distribution" section shall also expressly
permit the use of the Prospectus by all Persons subject to the prospectus
delivery requirements of the Securities Act, including all Participating Broker-
Dealers (unless such Participating Broker-Dealer will be reselling an unsold
allotment from the original sale of the Original Securities), and include a
statement describing the means by which Participating Broker-Dealers may resell
the New Securities.
Upon written request after the consummation of the Exchange Offer,
each of the Issuer and the Guarantors shall use its best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
Prospectus contained therein, in order to permit such Prospectus to be lawfully
delivered by any Participating Broker-Dealer subject to the prospectus delivery
requirements of the Securities Act and other Persons, if any, with similar
prospectus delivery requirements for such period of time as is necessary to
comply with applicable law in connection with any resale of the New Securities;
provided, however, that such period shall not exceed 180 days after the
consummation of the Exchange Offer (or such longer period if extended pursuant
to the last paragraph of Section 5 hereof) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, the Initial Purchaser
holds any Original Securities acquired by it and having, or which are reasonably
likely to be determined to have, the status of an unsold allotment in the
initial distribution, the Issuer and the Guarantors, upon the written request of
the Initial Purchaser simultaneously with the delivery of the New Securities in
the Exchange Offer, shall issue and deliver to the Initial Purchaser in exchange
(the "Private Exchange") for such Original Securities held by the Initial
Purchaser a like principal amount of notes of the same series of the Issuer,
that are substantially identical in all material respects to the New Securities
(the "Private Exchange Securities") (and which are issued pursuant to the same
indenture as the New Securities) except for the placement of a restrictive
legend on such Private Exchange Securities. The Private Exchange Securities
shall bear the same CUSIP number as the New Securities to the extent permitted
by the CUSIP Service Bureau of Standard & Poor's.
Interest on the New Securities and the Private Exchange Securities
will accrue from the last interest payment date on which interest was paid on
the Original Securities surrendered in exchange therefor or, if no interest has
been paid on such Original Securities, from the Issue Date.
In connection with the Exchange Offer, the Issuer and the Guarantors
shall:
(1) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York, which may be
the Trustee or an affiliate of the Trustee;
(3) permit Holders to withdraw tendered Original Securities 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 or the
Private Exchange, as the case may be, the Issuer and the Guarantors shall:
(1) accept for exchange all Original Securities tendered and not
validly withdrawn pursuant to the Exchange Offer or the Private Exchange;
(2) deliver to the Trustee or Authenticating Agent for cancellation
all Original Securities so accepted for exchange; and
(3) cause the Trustee promptly to authenticate and deliver to each
Holder of the Original Securities, New Securities or Private Exchange
Securities, as the case may be, in global form equal in principal amount to
the respective Original Securities so accepted for exchange, as further set
forth in the Indenture.
The New Securities and the Private Exchange Securities may be issued
under (i) the Indenture or (ii) an indenture substantially identical in all
material respects to the Indenture, which in either event shall provide that (1)
the New Securities shall not be subject to the transfer restrictions set forth
in the Indenture and (2) the Private Exchange Securities shall be subject to the
transfer restrictions set forth in the Indenture. The Indenture or such
indenture substantially identical in all material respects to the Indenture
shall provide that the New Securities, Private Exchange Securities and Original
Securities shall vote and consent together on all matters as one class and that
none of the New Securities, Private Exchange Securities or Original Securities
will have the right to vote or consent as a separate class on any matter.
(c) If (i) the Issuer and the Guarantors are not permitted to file the
Exchange Offer Registration Statement or to consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or SEC policy,
(ii) any Holder of Transfer Restricted Securities that is a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act) notifies
the Issuer and the Guarantors at least 20 Business Days prior to the
consummation of the Exchange Offer that (a) applicable law or SEC policy
prohibits such Holder from participating in the Exchange Offer, (b) such Holder
may not resell the New Securities acquired by it in the Exchange Offer to the
public without delivering a prospectus and the prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such Holder or (c) such Holder is a broker-dealer and holds Original
Securities acquired directly from the Issuer, the Guarantors or any of their
respective affiliates, (iii) the Exchange Offer is not for any other reason
consummated within 30 business days after the Effectiveness Target Date, (iv)
any Holder (other than a Participating Broker-Dealer) is not eligible to
participate in the Exchange Offer, or in the case of any Holder that
participates in the Exchange Offer, such Holder does not receive New Securities
on the date of the exchange that may be sold without restriction under federal
securities laws (other than due solely to the status of such Holder as an
affiliate of the Issuer or the Guarantors within the meaning of the Securities
Act or due to the requirement that such Holder deliver a Prospectus in
connection with any resale of the New Securities) or (v) the Exchange Offer has
been completed and in the opinion of counsel for the Initial Purchaser a
Registration Statement must be filed and a prospectus must be delivered by the
Initial Purchaser in connection with any offering or sale of Transfer Restricted
Securities, then the Issuer and the Guarantors shall promptly deliver written
notice thereof (the "Shelf Notice") to the Trustee and in the case of clauses
(i) and (iii), all Holders, or in the case of clauses (ii), (iv) and (v) the
affected Holders, and shall at its own cost file a Shelf Registration Statement
pursuant to Section 3 hereof.
3. Shelf Registration Statement
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If a Shelf Notice is delivered as contemplated by Section 2(c) hereof,
then:
(a) Shelf Registration Statement. Each of the Issuer and the
Guarantors will use its best efforts to: (A) file with the SEC a Registration
Statement for an offering to be made on a continuous basis pursuant to Rule 415
covering all of the Transfer Restricted Securities (the "Shelf Registration
Statement"), within 90 days of the earliest to occur of clauses (i) through (v)
in Section 2(c) above and (B) cause the Shelf Registration Statement to be
declared effective by the SEC on or prior to the 180th day after such obligation
arises; provided, however, that if the Issuer and the Guarantors file a Shelf
Registration Statement pursuant to this Section 3(a), they need not abandon the
attempt to cause the SEC to declare the Exchange Offer Registration Statement
effective, and they may satisfy their obligations to register the Original
Securities pursuant to this Agreement either by complying with Section 2 and/or
Section 3. If the Issuer and the Guarantors shall not have yet filed an
Exchange Offer Registration Statement, each of the Issuer and the Guarantors
shall use its best efforts to file with the SEC the Shelf Registration Statement
on or prior to the Filing Date. The Shelf Registration Statement shall be on
Form S-1 or another appropriate form permitting registration of such Transfer
Restricted Securities for resale by Holders in the manner or manners designated
by them (including, without limitation, one or more underwritten offerings), or
may be an amendment to the Exchange Offer Registration Statement. The Issuer
and the Guarantors shall not permit any securities other than the Transfer
Restricted Securities to be included in the Shelf Registration Statement.
Each of the Issuer and the Guarantors shall use its best efforts to
keep the Shelf Registration Statement continuously effective, supplemented and
amended to ensure that it is available for resales of Original Securities by the
holders of Transfer Restricted Securities entitled to this benefit and to ensure
that such Shelf Registration Statement conforms and continues to conform with
the requirements of this Agreement, the Securities Act and the policies, rules
and regulations of the SEC, as announced from time to time, until the second
anniversary of the Issue Date, subject to extension pursuant to the last
paragraph of Section 5 hereof (the "Effectiveness Period"), or such shorter
period ending when all Transfer Restricted Securities covered by the Shelf
Registration Statement have been sold in the manner set forth and as
contemplated in the Shelf Registration Statement or when the Transfer Restricted
Securities become eligible for resale pursuant to Rule 144 under the Securities
Act without volume restrictions, if any.
(b) Withdrawal of Stop Orders. If the Shelf Registration Statement
ceases to be effective for any reason at any time during the Effectiveness
Period (other than because of the sale of all of the securities registered
thereunder), each of the Issuer and the Guarantors shall use its best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof.
(c) Supplements and Amendments. The Issuer and the Guarantors shall
promptly supplement and amend the Shelf Registration Statement if required by
the rules, regulations or instructions applicable to the registration form used
for such Shelf Registration Statement, if required by the Securities Act, or if
reasonably requested by the Holders of a majority in aggregate principal amount
of the Transfer Restricted Securities covered by such
Registration Statement or by any underwriter of such Transfer Restricted
Securities based on a reasonable belief that such supplement or amendment is
required by law.
4. Liquidated Damages
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(a) The Issuer, the Guarantors and the Initial Purchaser agree that
the Holders of Original Securities will suffer damages if the Issuer and the
Guarantors fail to fulfill their 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 and the Guarantors agree to pay jointly and
severally, as liquidated damages, additional interest on the Original Securities
("Liquidated Damages") under the circumstances and to the extent set forth below
(each of which shall be given independent effect and shall not be duplicative):
(i) if neither the Exchange Offer Registration Statement nor the
Shelf Registration Statement has been filed on or prior to the Filing Date,
then, commencing on the 91st day after the Issue Date, Liquidated Damages
shall accrue on the Original Securities in an amount equal to 0.05 per week
per 1,000 principal amount of Original Securities for the first 90 days
immediately following the Filing Date, such Liquidated Damages increasing
by an additional 0.05 per week per 1,000 principal amount of Original
Securities at the beginning of each subsequent 90-day period, or part
thereof; or
(ii) if neither the Exchange Offer Registration Statement nor the
Shelf Registration Statement is declared effective by the SEC on or prior
to the Effectiveness Target Date, then, commencing on the 181st day after
the Issue Date, Liquidated Damages shall accrue on the Original Securities
included or which should have been included in such Registration Statement
in an amount equal to 0.05 per week per 1,000 principal amount of Original
Securities for the first 90 days immediately following the Effectiveness
Target Date, such Liquidated Damages increasing by an additional 0.05 per
week per 1,000 principal amount of Original Securities at the beginning of
each subsequent 90-day period, or part thereof; or
(iii) if the Exchange Offer has not been consummated within 30
business days after the Effectiveness Target Date with respect to the
Exchange Offer Registration Statement, Liquidated Damages shall accrue on
the Original Securities in an amount equal to 0.05 per week per 1,000
principal amount of Original Securities for the first 90 days commencing on
the day following the 30th business day after the Effectiveness Target
Date, such Liquidated Damages increasing by an additional 0.05 per week per
1,000 principal amount of Original Securities at the beginning of each
subsequent 90-day period, or part thereof; provided, that no Liquidated
Damages shall accrue under this Section 4(a)(iii) if the Issuer or the
Guarantors extends the consummation date of the Exchange Offer with the
prior consent of the Initial Purchaser, and the Issuer and the Guarantors
are otherwise in full compliance with this Section 4(a); or
(iv) (A) the Exchange Offer Registration Statement is filed and
declared effective but thereafter ceases to be effective or fails to be
usable for its intended purpose at any time prior to the time that the
Exchange Offer is consummated and is not declared effective within five
Business Days thereafter or
(B) the Shelf Registration Statement is filed and declared effective but
thereafter ceases to be effective or fails to be usable for its intended
purpose at any time during the Effectiveness Period and is not declared
effective again within five Business Days thereafter, Liquidated Damages
shall accrue on the Original Securities in an amount equal to 0.05 per
week per 1,000 principal amount of Original Securities for the first 90
days commencing on the day the applicable Registration Statement ceases
to be effective or usable for its intended purpose without being declared
effective again within five Business Days, such Liquidated Damages
increasing by an additional 0.05 per week per 1,000 principal amount of
Original Securities at the beginning of each such subsequent 90- day
period, or part thereof (it being understood and agreed that,
notwithstanding any provision to the contrary, so long as any Original
Security which is the subject of a Shelf Notice is then covered by an
effective Shelf Registration Statement, no Liquidated Damages shall
accrue on such Original Security);
provided, however, that Liquidated Damages may accrue up to a maximum of 0.20
per week per 1,000 principal amount of Original Securities; and provided,
further, that (1) upon the filing of the Exchange Offer Registration Statement
or a Shelf Registration Statement as required hereunder (in the case of clause
(i) of this Section 4(a)), (2) upon the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement as required hereunder
(in the case of clause (ii) of this Section 4(a)), (3) upon the consummation of
the Exchange Offer (in the case of clause (iii) of this Section 4(a)), and (4)
upon the effectiveness or usability of the Exchange Offer Registration Statement
which had ceased to remain effective or be usable (in the case of clause (iv)(A)
of this Section 4(a)), or upon the effectiveness or usability of the Shelf
Registration Statement which had ceased to remain effective or be usable (in the
case of clause (iv)(B) of this Section 4(a)), Liquidated Damages on the affected
Original Securities as a result of such clause (or the relevant subclause
thereof), as the case may be, shall cease to accrue.
(b) The Issuer and the Guarantors shall notify the Trustee within five
Business Days after each and every date on which an event occurs in respect of
which Liquidated Damages are required to be paid (an "Event Date"). Any amounts
of Liquidated Damages due pursuant to (a)(i), (a)(ii), (a)(iii) or (a)(iv) of
this Section 4 will be payable to each holder of affected Original Securities
semi-annually on or before the applicable Interest Payment Date (as defined in
the Indenture) (whether or not any payment other than Liquidated Damages is
payable on such Original Securities), in the manner provided for the payment of
interest in the Indenture, commencing with the first such date occurring after
any such Liquidated Damages commences to accrue. The amount of Liquidated
Damages will be determined by multiplying the applicable Liquidated Damages rate
by the principal amount of the affected Original Securities of such Holders,
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. The Issuer and the Guarantors shall notify the Trustee within five
Business Days of the cessation of any requirement to pay Liquidated Damages
hereunder.
5. Registration Procedures
-----------------------
In connection with the filing of any Registration Statement pursuant
to Sections 2 or 3 hereof, the Issuer and the Guarantors shall effect such
registration(s) 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 and the Guarantors hereunder the Issuer and the Guarantors shall:
(a) Prepare and file with the SEC prior to the Filing Date, a
Registration Statement or Registration Statements as prescribed by Sections 2 or
3 hereof, and use their 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, or (2) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant to Section
2 hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell New Securities during the
Applicable Period, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Issuer and the Guarantors shall furnish
to and afford the Holders of the Transfer Restricted Securities covered by such
Registration Statement or each such Participating Broker-Dealer, as the case may
be, their counsel 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).
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement or Exchange Offer Registration
Statement, as the case may be, as may be necessary to keep such Registration
Statement continuously effective for the Effectiveness Period or the Applicable
Period or until consummation of the Exchange Offer, 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. Notwithstanding the
foregoing, if the Board of Managers of the Company determines in good faith that
it is in the best interests of the Company not to disclose the existence of or
facts surrounding any proposed or pending material event or transaction
involving the Company or its subsidiaries, the Issuer and the Guarantors may (i)
in the event a Shelf Registration Statement has been filed, allow the Shelf
Registration Statement to fail to be effective or usable as a result of such
nondisclosure for up to 60 days during the Effectiveness Period, but in no event
for any period in excess of 30 consecutive days, and (ii) in the event the
Exchange Offer is consummated, allow the Exchange Offer Registration Statement
to fail to be effective or usable as a result of such non-disclosure for up to
15 days during the Applicable Period. The Issuer and the Guarantors shall be
deemed not to have used their best efforts to keep a Registration Statement
effective during the Applicable Period if they or any of them voluntarily takes
any action that would result in selling Holders of the Transfer Restricted
Securities covered thereby or Participating Broker-Dealers seeking to sell New
Securities not being able to sell such Transfer Restricted
Securities or such New Securities during that period unless such action is
required by applicable law or unless the Issuer and the Guarantors comply with
this Agreement, including without limitation, the provisions of paragraph 5(k)
hereof and the last paragraph of this Section 5.
(c) If (1) a Shelf Registration Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell New
Securities during the Applicable Period, notify the Holders of Transfer
Restricted Securities, or each such Participating Broker-Dealer, as the case may
be, their counsel and the managing underwriters, if any, promptly (but in any
event within five Business Days), and, if requested by such Persons, 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 and the
Guarantors, 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 SEC of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus or the initiation of any proceedings for that purpose, (iii) if at
any time when a prospectus is required by the Securities Act to be delivered in
connection with sales of the Transfer Restricted Securities or resales of New
Securities by Participating Broker-Dealers the representations and warranties of
the Issuer and the Guarantors contained in any agreement (including any
underwriting agreement), contemplated by Section 5(m) hereof cease to be true
and correct, (iv) of the receipt by the Issuer and the Guarantors of any
notification with respect to the suspension of the qualification or exemption
from qualification of a Registration Statement or any of the Transfer Restricted
Securities or the New Securities to be sold by any Participating Broker-Dealer
for offer or sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose, (v) of the happening of any event, the existence of
any condition or any information becoming known 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 light of the circumstances under which they were
made, not misleading, and (vi) of the determination by the Issuer and the
Guarantors that a post-effective amendment to a Registration Statement would be
appropriate.
(d) Use their 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 Transfer Restricted Securities
or the New Securities for sale in any jurisdiction, and, if
any such order is issued, to use their best efforts to obtain the withdrawal of
any such order at the earliest possible moment.
(e) If a Shelf Registration Statement is filed pursuant to Section 3
and if reasonably requested by the managing underwriter or underwriters (if
any), or the Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities being sold in connection with an underwritten offering or
any Participating Broker-Dealer, (i) promptly incorporate in a prospectus
supplement or post-effective amendment such information as the managing
underwriter or underwriters (if any), such Holders, any Participating Broker-
Dealer or counsel for any of them may reasonably request to be included therein,
(ii) make all required filings of such prospectus supplement or such post-
effective amendment as soon as practicable after the Issuer and the Guarantors
have received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment, and (iii) supplement or make amendments
to such Registration Statement.
(f) If (l) a Shelf Registration Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell New
Securities during the Applicable Period, furnish to each selling Holder of
Transfer Restricted Securities and to each such Participating Broker-Dealer who
so requests and to counsel and each managing underwriter, if any, at the sole
expense of the Issuer and the Guarantors, 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 (l) a Shelf Registration Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell New
Securities during the Applicable Period, deliver to each Holder of Transfer
Restricted Securities, or each such Participating Broker-Dealer, as the case may
be, their respective counsel, and the underwriters, if any, at the sole expense
of the Issuer and the Guarantors, 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, each of the Issuer and the Guarantors hereby consents to the use of
such Prospectus and each amendment or supplement thereto by each of the Holders
of Transfer Restricted Securities 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 Transfer Restricted Securities
covered by, or the sale by Participating Broker-Dealers of the New Securities
pursuant to, such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Transfer Restricted Securities or
New Securities or any delivery of a Prospectus contained in the Exchange Offer
Registration Statement by any Participating Broker-Dealer who seeks to sell New
Securities during the Applicable Period, use their reasonable best efforts to
register or qualify (and to cooperate with selling Holders of Transfer
Restricted Securities or each such Participating Broker-Dealer, as the case may
be, the managing underwriter or underwriters, if any, and
their respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such Transfer
Restricted Securities) 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 where New Securities held by
Participating Broker-Dealers or Transfer Restricted Securities are offered other
than through an underwritten offering, the Issuer and the Guarantors agree to
cause their counsel to perform Blue Sky investigations and file registrations
and qualifications required to be filed pursuant to this Section 5(h); keep each
such registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do any
and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the New Securities held by Participating
Broker-Dealers or the Transfer Restricted Securities covered by the applicable
Registration Statement; provided, however, that none of the Issuer and the
Guarantors shall 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 any such jurisdiction
where it is not then so subject.
(i) If a Shelf Registration Statement is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Transfer Restricted Securities and
the managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold, which certificates shall not bear any restrictive legends
and shall be in a form eligible for deposit with DTC; and enable such Transfer
Restricted Securities to be in such denominations and registered in such names
as the managing underwriter or underwriters, if any, or Holders may request.
(j) Use their best efforts to cause the Transfer Restricted Securities
covered by the Registration Statement and the New Securities to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable the selling Holders thereof or the underwriter or
underwriters, if any, to dispose of such Transfer Restricted Securities or New
Securities, except as may be required solely as a consequence of the nature of a
selling Holder's business, in which case the Issuer and the Guarantors will
cooperate in all reasonable respects with the filing of such Registration
Statement and the granting of such approvals.
(k) If (l) a Shelf Registration Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell New
Securities during the Applicable Period, upon the occurrence of any event
contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as practicable
prepare and (subject to Section 5(b) hereof) file with the SEC, at the sole
expense of the Issuer and the Guarantors, a supplement or post-effective
amendment to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as thereafter delivered
to the purchasers of the Transfer Restricted Securities being sold thereunder or
to the purchasers of the New Securities to whom such Prospectus will be
delivered by a Participating Broker-Dealer, any such Prospectus will not contain
an untrue statement of a material fact or omit to state a material fact required
to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(l) Prior to the effective date of the first Registration Statement
relating to the Transfer Restricted Securities, provide a CUSIP number, ISIN
Code and Common Code for the Transfer Restricted Securities or New Securities,
as the case may be.
(m) In connection with any underwritten offering of Transfer
Restricted Securities pursuant to a Shelf Registration Statement, enter into an
underwriting agreement as is customary in underwritten offerings of debt
securities similar to the Original Securities and take all such other actions as
are reasonably requested by the managing underwriter or underwriters in order to
facilitate the registration or the disposition of such Transfer Restricted
Securities and, in such connection, (i) make such representations and warranties
to, and covenants with, the underwriters with respect to the business of the
Company and its subsidiaries (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 issuers to underwriters in underwritten
offerings of debt securities similar to the Original Securities, and confirm the
same in writing if and when requested; (ii) obtain the written opinion of
counsel to the Issuer and the Guarantors 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 of debt similar to the
Original Securities and such other matters as may be reasonably requested by the
managing underwriter or underwriters; (iii) 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 Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business acquired
by the Company for which financial statements and financial data are, or are
required to be, included 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 of debt similar to
the Original Securities and such other matters as reasonably requested by the
managing underwriter or underwriters; and (iv) if an underwriting agreement is
entered into, the same shall contain indemnification provisions and procedures
substantially similar to those set forth in Section 7 hereof (or such other
provisions and procedures acceptable to Holders of a majority in aggregate
principal amount of Transfer Restricted Securities 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, including, without
limitation, the Holders of Transfer Restricted Securities and the underwriters.
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 Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell New
Securities during the Applicable Period, make available for inspection by a
representative of the selling Holders of such Transfer Restricted Securities
being sold, or a representative of the Participating Broker-Dealers, as the case
may be, a representative of the managing underwriter participating in any such
disposition of Transfer Restricted Securities, if any, and one firm each of
attorneys, accountants or other agents retained by any such selling Holders or
the Participating Broker-Dealers, as the case may be, the managing 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 Company 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 Company and its subsidiaries to supply all information
reasonably requested by any such Inspector in connection with such Registration
Statement. Records which the Company determines, in good faith, to be
confidential and any Records which it notifies the Inspectors are confidential
shall not be disclosed by the Inspectors unless (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in such
Registration Statement, (ii) the release of such Records is ordered pursuant to
a subpoena or other order from a court of competent jurisdiction, (iii)
disclosure of such information is, in the opinion of counsel for any Inspector
and after consultation with the Company, necessary 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 any transactions contemplated hereby or
arising hereunder, or (iv) the information in such Records has been made
generally available to the public. Each selling Holder of such Transfer
Restricted Securities and each such Participating Broker-Dealer will be required
to agree that information obtained by it as a result of such inspections shall
be deemed confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such information
is generally available to the public. Each selling Holder of such Transfer
Restricted Securities and each such Participating Broker-Dealer or underwriter,
as the case may be, will be required further to agree that it will, upon
learning that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company at its sole
expense to undertake appropriate action to prevent disclosure of the Records
deemed confidential.
(o) Provide an indenture trustee for the Transfer Restricted
Securities or the New Securities, as the case may be, and cause the applicable
Indenture or the trust indenture provided for in Section 2(a) hereof, as the
case may be, to be qualified under the Trust Indenture Act not later than the
effective date of the first Registration Statement relating to the Transfer
Restricted Securities; and in connection therewith, cooperate with the trustee
under any such indenture and the Holders of the Transfer Restricted Securities,
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 Trust Indenture Act;
furnish the trustee with an officer's certificate certifying that such indenture
has been so qualified under the Trust Indenture Act and that the Transfer
Restricted Securities are the subject of a Registration Statement; and execute,
and use their reasonable best efforts to cause such trustee to execute, all
documents as may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable such indenture to be so
qualified in a timely manner.
(p) Comply with all applicable rules and regulations of the SEC 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 Transfer Restricted
Securities are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company after the
effective date of a Registration Statement, which statements shall cover said
12-month periods.
(q) If an Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Transfer Restricted Securities by Holders to the Issuer and
the Guarantors (or to such other Person as directed by the Issuer and the
Guarantors) in exchange for the New Securities or the Private Exchange
Securities, as the case may be, the Issuer and the Guarantors shall ▇▇▇▇, or
cause to be marked, on such Transfer Restricted Securities that such Transfer
Restricted Securities are being canceled in exchange for the New Securities or
the Private Exchange Securities, as the case may be; in no event shall such
Transfer Restricted Securities be marked as paid or otherwise satisfied.
(r) Cooperate with each seller of Transfer Restricted Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Transfer Restricted Securities and
their respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. (the "NASD").
(s) Use their best efforts to take all other steps necessary or
advisable to effect the registration of the New Securities and/or Transfer
Restricted Securities covered by a Registration Statement contemplated hereby.
(t) Make an application to list the New Securities on the Luxembourg
Stock Exchange and to use their best efforts to have the New Securities admitted
to trading on the Luxembourg Stock Exchange as promptly as practicable.
The Issuer and the Guarantors may require each seller of Transfer
Restricted Securities as to which any Shelf Registration Statement is being
effected to (i) furnish to the Issuer and the Guarantors such information
regarding such seller and the distribution of such Transfer Restricted
Securities and (ii) make such representations, in each case as the Issuer and
the Guarantors may, from time to time, reasonably request. The Issuer and the
Guarantors may exclude from such registration the Transfer Restricted Securities
of any seller who unreasonably fails to furnish such information or make such
representations within a reasonable time after receiving such request. Each
seller as to which any Shelf Registration Statement is being effected agrees to
furnish promptly to the Issuer and the Guarantors all information required to be
disclosed in order to make the information previously furnished to the Issuer
and the Guarantors by such seller not materially misleading.
Each Holder of Transfer Restricted Securities and each Participating
Broker-Dealer agrees by acquisition of such Transfer Restricted Securities or
New Securities to be sold by such Participating Broker-Dealer, as the case may
be, that, upon actual receipt of any notice from the Issuer and the Guarantors
of the happening of any event of the kind described in Section 5(c)(ii),
5(c)(iv), 5(c)(v) or 5(c)(vi) hereof, such Holder will forthwith discontinue
disposition of such Transfer Restricted Securities covered by such Registration
Statement or Prospectus or New Securities to be sold by such Holder or
Participating Broker-Dealer, as the case may be, until such Holder's or
Participating Broker-Dealer's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section
5(k) hereof, or until it is advised in writing (the "Advice") by the Issuer and
the Guarantors that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto. In the event the
Issuer and the Guarantors shall give any such notice, each of the Effectiveness
Period and the Applicable Period shall be extended by the number of days during
such periods from and including the date of the giving of such notice to and
including the date when each seller of Transfer Restricted Securities covered by
such Registration Statement or New Securities to be sold by such Participating
Broker-Dealer, as the case may be, shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof or (y)
the Advice.
6 Registration Expenses
---------------------
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuer and the Guarantors shall be borne by the
Issuer and the Guarantors whether or not the Exchange Offer Registration
Statement or a Shelf Registration Statement is filed or becomes effective,
including, without limitation, (i) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required to be made with
the NASD in connection with an underwritten offering, (B) fees and expenses of
compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of counsel in connection with Blue
Sky qualifications of the Transfer Restricted Securities or New Securities and
determination of the eligibility of the Transfer Restricted Securities or New
Securities for investment under the laws of such jurisdictions (x) where the
holders of Transfer Restricted Securities are located, in the case of the New
Securities, or (y) as provided in Section 5(h) hereof, in the case of Transfer
Restricted Securities or New Securities to be sold by a Participating Broker-
Dealer during the Applicable Period)), and (C) all expenses and fees in
connection with the obtaining of any approval from the Stichting Toezicht
Effectenverkeer or any other relevant authority in The Netherlands; (ii)
printing expenses, including, without limitation, the printing of prospectuses
if the printing of prospectuses is requested by the managing underwriter or
underwriters, if any, by the Holders of a majority in aggregate principal amount
of the Transfer Restricted Securities included in any Registration Statement or
by any Participating Broker-Dealer, as the case may be, (iii) reasonable fees
and disbursements of counsel for the Issuer and the Guarantors and reasonable
fees and disbursements of special counsel for the sellers of Transfer Restricted
Securities (subject to the provisions of Section 6(b) hereof), (iv) reasonable
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), (v) rating agency fees, if any, and any fees associated with
making the New Securities eligible for trading through DTC, the Euroclear System
or Clearstream Banking, societe anonyme, (vi) Securities Act liability
insurance, if the Issuer and the Guarantors desire such insurance, (vii)
reasonable fees and expenses of all other Persons retained by the Issuer and the
Guarantors, (viii) internal expenses of the Issuer and the Guarantors
(including, without limitation, all salaries and expenses of officers and
employees of the Issuer and the Guarantors performing legal or accounting
duties), (ix) the expense of any annual audit, (x) the reasonable fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, if applicable, and (xi) the expenses
relating to printing, word processing and distributing all Registration
Statements, underwriting agreements, securities sales agreements, indentures and
any other documents necessary in order to comply with this Agreement.
(b) The Issuer and the Guarantors shall reimburse the Holders of the
Transfer Restricted Securities being registered in a Shelf Registration
Statement for the reasonable fees and disbursements of not more than one counsel
(in addition to appropriate local counsel) chosen by the Holders of a majority
in aggregate principal amount of the Transfer Restricted Securities to be
included in such Registration Statement.
7 Indemnification and Contribution
--------------------------------
(a) The Issuer and the Guarantors, jointly and severally, shall
indemnify and hold harmless each Holder of Transfer Restricted Securities
offered pursuant to a Shelf Registration Statement, each Participating Broker-
Dealer selling New Securities during the Applicable Period and the Initial
Purchaser and the officers and employees and each Person, if any, who controls
any such Person within the meaning of the Securities Act (each a "Participant")
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to the exchange of or sales of the Transfer
Restricted Securities), to which that Participant may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement or
Prospectus, (ii) the omission or alleged omission to state therein any material
fact required to be stated therein or necessary to make the statements therein
not misleading or (iii) any act or failure to act, or any alleged act or failure
to act, by any Participant in connection with, or relating in any manner to, the
Transfer Restricted Securities or the registration contemplated hereby, and
which is included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon matters covered by clause (i)
or (ii) above (provided, that neither the Issuer nor any of the Guarantors shall
be liable in the case of any matter covered by this clause (iii) to the extent
that it is determined in a final judgment by a court of competent jurisdiction
that such loss, claim, damage, liability or action resulted directly from any
such act or failure to act undertaken or omitted to be taken by such Participant
through its gross negligence or wilful misconduct), and shall reimburse each
Participant promptly upon demand for any legal or other expenses reasonably
incurred by that Participant in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that neither the Issuer nor any
of the Guarantors shall be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement or Prospectus, or in any such amendment or
supplement, in reliance upon and in conformity with the written information
furnished to the Issuer and the Guarantors by or on behalf of any Participant
specifically for inclusion therein. The foregoing indemnity agreement is in
addition to any liability which the Issuer and the Guarantors may otherwise have
to any Participant.
(b) Each Holder of Transfer Restricted Securities offered pursuant to
a Shelf Registration Statement, each Participating Broker-Dealer selling New
Securities during the Applicable Period and the Initial Purchaser (each a
"Participant Indemnifying Party"), severally and not jointly, shall indemnify
and hold harmless the Issuer, the Guarantors, their respective officers and
employees, each of their respective directors and each Person, if any, who
controls the Issuer or any of the Guarantors within the meaning of the
Securities Act from and against any loss, claim, damage or liability, joint or
several, or any action in respect
thereof, to which the Issuer, the Guarantors or any such director, officer or
controlling Person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus or the Registration Statement or
Prospectus, or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein any material fact required to be stated
therein or necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
the written information furnished to the Issuer and the Guarantors by that
Participant Indemnifying Party specifically for inclusion therein, and shall
reimburse the Issuer, the Guarantors and any such director, officer or
controlling Person for any legal or other expenses reasonably incurred by the
Issuer, the Guarantors or any such director, officer or controlling Person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which any
Participant Indemnifying Party may otherwise have to the Issuer, the Guarantors
or any such director, officer or controlling Person.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 7 except to the extent it has
been materially prejudiced by such failure; and provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 7.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgement of such counsel it is advisable for such indemnified party
to employ separate counsel or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time (in addition to one
separate firm constituting local counsel, if appropriate) for all such
indemnified parties, which firm shall be designated in writing by the Initial
Purchaser, if the indemnified parties under this Section 7 consist of any
Participants, or by the Issuer and the Guarantors, if the indemnified parties
under this Section consist of the Issuer, the Guarantors or any of their
respective directors, officers, employees or controlling Persons. Each
indemnified party, as a condition of the indemnity agreements contained in
Sections 7(a) and 7(b), shall use its reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No indemnifying
party shall (i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld) settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent (a) includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding
and (b) does not include a statement as to or an admission of fault, culpability
or a failure to act, by or on behalf of the indemnified party, or (ii) be liable
for any settlement of any such action effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with its
written consent or if there be a final judgment of the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss of liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 7 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 7(a) or 7(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Issuer and the Guarantors on the one hand and the Participants
on the other from the offering of the Original Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Issuer and
the Guarantors on the one hand and the Participants on the other with respect to
the statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Issuer and the Guarantors on the one hand and
the Participants on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Original Securities (before
deducting expenses underwriting discounts and commissions) received by the
Issuer and the Guarantors bear on the one hand, and the total underwriting
discounts and commissions received by the Participants with respect to the
Original Securities purchased under the Purchase Agreement, on the other hand,
bear to the total gross proceeds from the offering of the Original Securities
under the Purchase Agreement. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Issuer, the Guarantors or the Participants, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Issuer, the Guarantors and
the Participants agree that it would not be just and equitable if contributions
pursuant to this Section 7(d) were to be determined by pro rata allocation (even
if the Participants were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 7(d) shall be deemed to include, for
purposes of this Section 7(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7(d), no
Participant shall be required to contribute any amount in excess of the amount
by which the total price at which the Original Securities purchased by it were
resold exceeds the amount of any damages which such Participant has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The Participant's obligations to contribute as
provided in this Section 7(d) are several in proportion to their respective
purchase obligations and not joint.
8 Rule 144A.
---------
Whether or not the Company is required by the rules and regulations of
the SEC, so long as any Original Securities are outstanding, the Company will
furnish to each of the holders of Original Securities (i) all quarterly and
annual financial information that would be required to be contained in a filing
with the SEC on Forms 10-Q and 10-K if the Company were required to file such
financial information (including such financial information with respect to the
Issuer and the Guarantors as would be required following the Exchange Offer),
including a "Management's Discussion and Analysis of Financial Condition and
Results of Operations" that describes the financial condition and results of
operations of the Company and any consolidated Restricted Subsidiaries (as
defined in the Indenture) and, with respect to the annual information only,
reports thereon by the Company's independent public accountants (which shall be
firm(s) of established national reputation), provided, that this clause (i)
shall not apply to reports for the period ending March 31, 2000, and (ii) all
information that would be required to be filed with the SEC on Form 8-K if the
Company were required to file such reports. All such information and reports
shall be filed with the SEC on or prior to the dates on which such filings would
have been required to be made had the Company been subject to the rules and
regulations of the SEC. In addition, whether or not required by the rules and
regulations of the SEC, the Company shall file a copy of all such information
and reports with the SEC for public availability within the time periods
specified in the SEC's rules and regulations (unless the SEC will not accept
such a filing) and make such information available to securities analysts and
prospective investors upon request. For so long as any Original Securities
remain outstanding, the Issuer, the Company and the other Guarantors shall
furnish to the holders of Original Securities and to securities analysts and
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act. If and so long
as the Original Securities are listed on the Luxembourg Stock Exchange and its
rules so require, the Issuer will deposit all information and reports referred
to in clauses (i) and (ii) above with its listing agent in Luxembourg.
9 Underwritten Registrations.
--------------------------
If any of the Transfer Restricted Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Holders of a majority in aggregate
principal amount of such Transfer Restricted Securities included in such
offering and shall be reasonably acceptable to the Issuer and the Guarantors.
No Holder of Transfer Restricted Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Transfer Restricted Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10 Miscellaneous
-------------
(a) No Inconsistent Agreements. Neither the Issuer nor any of the
Guarantors has entered into as of the date hereof, nor will any of them enter
into after the date of this Agreement, any agreement with respect to any of
their respective securities that is inconsistent with the rights granted to the
Holders of Transfer Restricted Securities in this Agreement or otherwise
conflicts with the provisions hereof. The Issuer and the Guarantors will not
enter into any agreement with respect to any of their respective securities
which will grant to any Person piggyback registration rights with respect to the
Exchange Offer Registration Statement or the Shelf Registration Statement, other
than in connection with any issuance of Additional Notes (as defined in the
Indenture).
(b) Adjustments Affecting Transfer Restricted Securities. The
Issuer and the Guarantors shall not, directly or indirectly, take any action
with respect to the Transfer Restricted Securities as a class that would
adversely affect the ability of the Holders of Transfer Restricted Securities to
include such Transfer Restricted Securities 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, otherwise than with the prior
written consent of (A) the Holders of not less than a majority in aggregate
principal amount of the then outstanding Transfer Restricted Securities with
respect to the Transfer Restricted Securities 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 New Securities held by all Participating Broker-Dealers with respect to the
New Securities; provided, however, that Section 7 and this Section 10(c) may not
be amended, modified or supplemented without the prior written consent of each
Holder and each Participating Broker-Dealer (including any Person who was a
Holder or Participating Broker-Dealer of Transfer Restricted Securities or New
Securities, as the case may be, disposed of pursuant to any Registration
Statement). Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of the Transfer Restricted Securities 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 Transfer Restricted Securities may be
given by Holders of at least a majority in aggregate principal amount of the
Transfer Restricted Securities being sold by such Holders pursuant to such
Registration Statement; provided, however, that the provisions of this sentence
may not be amended, modified or supplemented except in accordance with the
provisions of the immediately preceding sentence.
(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 facsimile:
(1) if to a Holder of the Transfer Restricted Securities 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 relevant Indenture, with a copy in like manner
to the Initial Purchaser as follows:
▇▇▇▇▇▇ Brothers Inc.
Three World Financial Center
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Attention: Syndicate Department
and a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No: ▇▇▇-▇▇-▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
(2) if to the Initial Purchaser, to the address specified in Section
10(d)(1), with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, at the address specified in
such section;
(3) if to the Issuer and/or the Guarantors, as follows:
Weigh-Tronix, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ III
with a copy to:
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Any such statements, requests, notices or agreements shall take effect at
the time of receipt thereof. The Issuer and the Guarantors shall be entitled to
act and rely upon any request, consent, notice or agreement given or made on
behalf of the Initial Purchaser.
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 each Indenture.
If the Original Securities are listed on the Luxembourg Stock Exchange at
the time of completion of the Exchange Offer, the Luxembourg Stock Exchange will
be notified of the commencement and result of such Exchange Offer. All relevant
documents with respect to the Exchange Offer will be made available at the
offices of the Issuer's listing agent in Luxembourg.
(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 and
the Holders; 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 Transfer Restricted Securities.
(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 AND THE RIGHTS AND DUTIES OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK
(i) Submission to Jurisdiction; Appointment of Agent for Service; Waiver.
To the fullest extent permitted by applicable law, each of the Issuer and the
Guarantors irrevocably submits to the non-exclusive jurisdiction of any federal
or state court in the Borough of Manhattan in the City of ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, in any suit or proceeding based on
or arising under this Agreement, and irrevocably agrees that all claims in
respect of such suit or proceeding may be determined in any such court. Each of
the Issuer and the Guarantors, to the fullest extent permitted by applicable
law, irrevocably and fully waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding and hereby irrevocably designates and
appoints CT Corporation System (the "Authorized Agent"), ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇, ▇▇▇▇▇, for a period of ten years or until such time as no Original
Securities are outstanding, as its authorized agent upon whom process may be
served in any such suit or proceeding. Each of the Issuer and the Guarantors
represents that it has notified the Authorized Agent of such
designation and appointment and that the Authorized Agent has accepted the same
in writing. Each of the Issuer and the Guarantors hereby irrevocably authorizes
and directs its Authorized Agent to accept such service. Each of the Issuer and
the Guarantors further agrees that service of process upon its Authorized Agent
and written notice of said service to the Issuer and the Guarantors mailed by
first class mail or delivered to its Authorized Agent shall be deemed in every
respect effective service of process upon the Issuer and the Guarantors in any
such suit or proceeding. Nothing herein shall affect the right of any person to
serve process in any other manner permitted by law. Each of the Issuer and the
Guarantors agrees that a final action in any such suit or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other lawful manner. Notwithstanding the foregoing, any action against
the Issuer or the Guarantors arising out of or based on this Agreement or the
transactions contemplated hereby may also be instituted by the Initial
Purchaser, their officers and employees or any person who controls the Initial
Purchaser within the meaning of the Securities Act in any competent court in The
Netherlands, and each of the Issuer and the Guarantors expressly accepts the
jurisdiction of any such court in any such action.
Each of the Issuer and the Guarantors hereby irrevocably waives, to
the extent permitted by law, any immunity to jurisdiction to which it may
otherwise be entitled (including, without limitation, immunity to pre-judgment
attachment, post-judgment attachment and execution) in any legal suit, action or
proceeding against it arising out of or based on this Agreement or the
transactions contemplated hereby.
The provisions of this Section 10(i) are intended to be effective upon
the execution of this Agreement without any further action by the Issuer, the
Guarantors or the Initial Purchaser and the introduction of a true copy of this
Agreement into evidence shall be conclusive and final evidence as to such
matters.
(j) Currency Indemnity. The Issuer and the Guarantors shall
indemnify each Participant against any loss incurred by it as a result of any
judgment or order being given or made and expressed and paid in a currency (the
"Judgment Currency") other than U.S. dollars and as a result of any variation as
between (i) the rate of exchange at which the U.S. dollar amount is converted
into the Judgment Currency for the purpose of such judgment or order and (ii)
the spot rate of exchange in New York, New York at which such Participant on the
date of payment of such judgment or order is able to purchase U.S. dollars with
the amount of the Judgment Currency actually received by such Participant. If
the U.S. dollars so purchased are greater than the amount originally due to such
Participant hereunder, such Participant agrees to pay to the Issuer and the
Guarantors an amount equal to the excess of the U.S. dollars so purchased over
the amount originally due to such Participant hereunder. The foregoing shall
constitute a separate and independent obligation of the Issuer, the Guarantors
and the Participant, as the case may be, and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "spot
rate of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, U.S. dollars.
(k) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their best efforts to find and
employ an alternative means to achieve the same or substantially the same result
as that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid, illegal,
void or unenforceable.
(l) Securities Held by the Issuer, the Guarantors or Their Respective
Affiliates. Whenever the consent or approval of Holders of a specified
percentage of Transfer Restricted Securities is required hereunder, Transfer
Restricted Securities held by the Issuer, the Guarantors or their respective
"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.
(m) Third Party Beneficiaries. Holders of Transfer Restricted
Securities and Participating Broker-Dealers are intended third party
beneficiaries of this Agreement, and this Agreement may be enforced by such
Persons.
(n) 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 Initial Purchaser on the
one hand and the Issuer and the Guarantors 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 Registration Rights
Agreement as of the date first written above.
Very truly yours,
SWT Finance B.V.
By: /s/ SWT Finance B.V.
-----------------------------------------
Name:
Title:
Weigh-Tronix, LLC
By: /s/ Weigh-Tronix, LLC
-----------------------------------------
Name:
Title:
SWT Holdings B.V.
By: /s/ SWT Holdings B.V.
-----------------------------------------
Name:
Title:
Weigh-Tronix, Inc.
By: /s/ Weigh-Tronix, Inc.
-----------------------------------------
Name:
Title:
Mecmesin, Inc.
By: /s/ Mecmesin, Inc.
-----------------------------------------
Name:
Title:
▇▇▇▇▇▇ Weigh-Tronix Limited
By: /s/ ▇▇▇▇▇▇ Weigh-Tronix Limited
-----------------------------------------
Name:
Title:
▇▇▇▇▇▇ Housewares Holdings Limited
By: /s/ ▇▇▇▇▇▇ Housewares Holdings Limited
-----------------------------------------
Name:
Title:
Weigh-Tronix Canada ULC
By: /s/ Weigh-Tronix Canada ULC
-----------------------------------------
Name:
Title:
Weigh-Tronix UK Limited
By: /s/ Weigh-Tronix UK Limited
-----------------------------------------
Name:
Title:
Berkel USA, Inc.
By: /s/ Berkel USA, Inc.
-----------------------------------------
Name:
Title:
Berkel, Inc.
By: /s/ Berkel, Inc.
-----------------------------------------
Name:
Title:
Berkel Products Co. Limited
By: /s/ Berkel Products Co. Limited
-----------------------------------------
Name:
Title:
Weigh-Tronix Delaware, Inc.
By: /s/ Weigh-Tronix Delaware, Inc.
-----------------------------------------
Name:
Title:
GEC ▇▇▇▇▇ limited*
By: /s/ GEC ▇▇▇▇▇ limited
-----------------------------------------
Name:
Title:
GEC ▇▇▇▇▇ Properties Limited*
By: /s/ GEC ▇▇▇▇▇ Properties Limited
-----------------------------------------
Name:
Title:
GEC ▇▇▇▇▇ International Limited*
By: /s/ GEC ▇▇▇▇▇ International Limited
-----------------------------------------
Name:
Title:
▇▇▇▇▇▇ Housewares Ltd*
By: /s/ ▇▇▇▇▇▇ Housewares Ltd
-----------------------------------------
Name:
Title:
* Executed as of June 13, 2000 (immediately following the closing of the
offering of the Original Notes).
Berkel (Ireland) Limited *
Signed, sealed and delivered by ▇▇▇▇▇ ▇▇▇▇▇▇▇, as
lawful attorney for Berkel (Ireland) Limited
By: /s/ Berkel (Ireland) Limited
-----------------------------------------
Name:
Title:
Witnessed
By:
-----------------------------------------
Name:
Title:
Occupation of Witness:
-------------------------------
Address of Witness:
* Executed as of June 13, 2000 (immediately following the closing of the
offering of the Original Notes).
▇▇▇▇▇▇ Brothers International (Europe)
By: /s/ ▇▇▇▇▇▇ Brothers International (Europe)
-------------------------------------------
Name:
Title: