EXHIBIT 4.2
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REGISTRATION RIGHTS AGREEMENT
Dated as of November 26, 1997
by and among
▇▇▇▇▇▇▇ ACQUISITION INC.
▇▇▇▇▇▇▇ HOLDINGS INC.
and
SBC WARBURG DILLON READ INC.
and
BT ALEX. ▇▇▇▇▇ INCORPORATED
This Registration Rights Agreement (this "Agreement") is made and
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entered into as of November 26, 1997 by and among ▇▇▇▇▇▇▇ ACQUISITION INC., a
Delaware corporation (the "Company"), ▇▇▇▇▇▇▇ HOLDINGS INC., a Delaware
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corporation (the "Guarantor") and SBC WARBURG DILLON READ INC. and BT ALEX.
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▇▇▇▇▇ INCORPORATED (the "Initial Purchasers"). The execution and delivery of
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this Agreement is a condition to the obligations of the Initial Purchasers to
purchase $100,000,000 aggregate principal amount of the Company's 11 1/4% Senior
Notes due 2007 (the "Notes") under the Purchase Agreement, dated November 24,
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1997 (the "Purchase Agreement"), by and among the Company, the Guarantor and the
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Initial Purchasers. The Notes will be guaranteed on a senior unsecured basis by
the Guarantor and will be issued pursuant to the Indenture (as defined herein).
The Company, the Guarantor and the Initial Purchasers hereby agree
as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall
have the following meanings:
Act: The Securities Act of 1933, as amended, and the rules and
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regulations promulgated by the Commission pursuant thereto.
Action: As defined in Section 8(c) of this Agreement.
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Broker-Dealer: Any broker or dealer registered under the Exchange
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Act.
Closing Date: The date that the Notes are purchased by the Initial
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Purchasers pursuant to the Purchase Agreement.
Commission: The Securities and Exchange Commission.
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Consummate: An Offer shall be deemed "Consummated" for purposes of
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this Agreement upon the occurrence of (i) the filing and effectiveness under the
Act of the Exchange Offer Registration Statement relating to the New Notes to be
issued in the Exchange Offer, (ii) the maintenance of such Registration
Statement continuously effective and the keeping of the Exchange Offer open for
a period not less than the minimum period required pursuant to Section 3(b) of
this Agreement and (iii) the delivery by the Company to the Registrar under the
Indenture of New Notes in the same aggregate principal amount as the aggregate
principal amount of Old Notes tendered by the Holders thereof pursuant to the
Exchange Offer and not withdrawn.
Damages Payment Date: With respect to the Old Notes, each Interest
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Payment Date.
Effectiveness Target Date: As defined in Section 5 of this
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Agreement.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
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the rules and regulations promulgated by the Commission pursuant thereto.
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Exchange Offer: The registration under the Act by the Company and the
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Guarantor of the New Notes pursuant to a Registration Statement pursuant to
which the Company and the Guarantor offer the Holders of all outstanding
Transfer Restricted Securities the opportunity to exchange all such outstanding
Old Notes that are Transfer Restricted Securities held by such Holders for New
Notes in an aggregate principal amount equal to the aggregate principal amount
of the Old Notes that are Transfer Restricted Securities tendered in such
exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement
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relating to the Exchange Offer, including the related Prospectus.
Holders: As defined in Section 2(b) of this Agreement.
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Indenture: The Indenture, dated as of November 26, 1997, by and among
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the Company, the Guarantor and the United States Trust Company of New York, as
trustee (the "Trustee"), pursuant to which the Notes are to be issued, as such
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Indenture is amended or supplemented from time to time in accordance with its
terms.
Initial Purchasers: SBC Warburg Dillon Read Inc. and BT Alex. ▇▇▇▇▇
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Incorporated.
Interest Payment Date: As defined in the Indenture and the Notes.
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NASD: National Association of Securities Dealers, Inc.
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New Notes: The Company's 11 1/4% Senior Notes due 2007 to be issued
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pursuant to the Indenture or an indenture substantially identical to the
Indenture (i) in connection with the Exchange Offer or (ii) upon the request of
any Holder of Old Notes covered by the Shelf Registration Statement, in exchange
for such Old Notes and evidencing the same debt as the Old Notes, including the
guarantee by the Guarantor.
Notes: Old Notes and New Notes.
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Old Notes: The Company's 11 1/4% Senior Notes due 2007 to be issued
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pursuant to the Indenture on the Closing Date, including the guarantee by the
Guarantor.
Participating Broker-Dealer: As defined in Section 6(a) of this
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Agreement.
Person: An individual, corporation, partnership, joint venture,
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incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or a government or other agency or political
subdivision thereof or other entity of any kind.
Prospectus: The prospectus included in a Registration Statement at
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the time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments and
supplements thereto, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference, if any, in
such Prospectus.
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Registration Default: As defined in Section 5 of this Agreement.
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Registration Statement: Any registration statement of the Company and
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the Guarantor relating to (a) an offering of New Notes pursuant to an Exchange
Offer or (b) the registration for resale of Transfer Restricted Securities
pursuant to the Shelf Registration Statement that is filed pursuant to the
provisions of this Agreement, in each case, including the Prospectus included
therein, all amendments and supplements thereto (including pre- and post-
effective amendments) and all exhibits and material incorporated by reference or
deemed to be incorporated by reference, if any, therein.
Shelf Filing Deadline: As defined in Section 4(a) of this Agreement.
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Shelf Registration Statement: As defined in Section 4(a) of this
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Agreement.
Subsidiary: With respect to any Person, any other Person of which a
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majority of the equity ownership or the voting securities is at the time owned,
directly or indirectly, by such Person or by one or more other subsidiaries of
such Person or a combination thereof.
TIA: The Trust Indenture Act of 1939, as amended (15 U.S.C. Section
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77aaa-77bbbb), as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note until the earliest to occur
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of (i) the date on which each such Old Note has been exchanged by a person other
than a Broker-Dealer for a New Note in the Exchange Offer, (ii) following the
exchange by a Broker-Dealer in the Exchange Offer of an Old Note for a New Note,
the date on which such New Note is sold to a purchaser who receives from such
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 Note has been effectively registered under the Act and disposed of in
accordance with the Shelf Registration Statement or (iv) the date on which such
Note could be resold pursuant to Rule 144 under the Act.
Underwritten Registration or Underwritten Offering: A registration in
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which securities of the Company are sold to an underwriter for reoffering to the
public pursuant to an effective Registration Statement.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to the
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benefits of this Agreement are the Transfer Restricted Securities.
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(b) Holders of Transfer Restricted Securities. A Person is deemed
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to be a holder of Transfer Restricted Securities (each, a "Holder") whenever
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such Person beneficially owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless, due to a change in federal law or Commission policy
after the date hereof, the Exchange Offer shall not be permitted by applicable
federal law or Commission policy, the Company and the Guarantor shall (i) cause
to be filed with the Commission on or prior to 90 days after the Closing Date,
an Exchange Offer Registration Statement under the Act relating to the New Notes
and the Exchange Offer and (ii) use their best efforts to cause such Exchange
Offer Registration Statement to be declared effective by the Commission on or
prior to 120 days after the Closing Date. In connection with the foregoing, the
Company and the Guarantor shall (A) file all pre-effective amendments to such
Exchange Offer Registration Statement as may be necessary to cause such Exchange
Offer Registration Statement to become effective, (B) if applicable, file a
post-effective amendment to such Exchange Offer Registration Statement pursuant
to Rule 430A under the Act, (C) cause all necessary filings in connection with
the registration and qualification of the New Notes to be made under the Blue
Sky laws of such jurisdictions as are necessary to permit Consummation of the
Exchange Offer and (D) upon the effectiveness of such Registration Statement,
commence the Exchange Offer and use their best efforts to issue on or prior to
30 days after the date on which such Exchange Offer Registration Statement is
declared effective by the Commission, New Notes in exchange for all Old Notes
tendered prior thereto in the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting registration of the New Notes to be offered in
exchange for the Old Notes that are Transfer Restricted Securities and to permit
resales of New Notes held by Broker-Dealers as contemplated by Section 3(c)
below. If, after such Exchange Offer Registration Statement initially is
declared effective by the Commission, the Exchange Offer or the issuance of New
Notes under the Exchange Offer or the resale of New Notes received by Broker-
Dealers in the Exchange Offer as contemplated by Section 3(c) below is
interfered with by any stop order, injunction or other order or requirement of
the Commission 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 during the period that such stop order, injunction or other
similar order or requirement shall remain in effect.
(b) The Company and the Guarantor shall cause the Exchange Offer
Registration Statement to be effective continuously and shall keep the Exchange
Offer open for a period of not less than the minimum period required under
applicable federal and state securities laws to Consummate the Exchange Offer;
provided, however, that in no event shall such period be less than 20 business
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days. The Company and the Guarantor shall cause the Exchange Offer to comply
with all applicable federal and state securities laws. The Company and the
Guarantor shall only offer to exchange New Notes for Old Notes in the Exchange
Offer. The Company and the Guarantor shall use their respective best efforts
to cause the Exchange Offer to be Consummated on the earliest practicable date
after the Exchange Offer Registration Statement has become effective, but in no
event later than 30 days after such effective date.
(c) The Company shall indicate in a "Plan of Distribution" section
contained
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in the Prospectus included in the Exchange Offer Registration Statement that any
Broker-Dealer that holds Old Notes that are Transfer Restricted Securities and
that were acquired for its own account as a result of market-making activities
or other trading activities (other than Transfer Restricted Securities acquired
directly from the Company or any affiliate of the Company), may exchange such
Old Notes pursuant to the Exchange Offer; provided, however, that such Broker-
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Dealer may be deemed to be an "underwriter" within the meaning of the Act
and must, therefore, deliver a prospectus meeting the requirements of the Act in
connection with any resales of the New Notes received by such Broker-Dealer in
the Exchange Offer. Such "Plan of Distribution" section shall allow the use of
such Prospectus by all Persons subject to the prospectus delivery requirements
of the Act, including Participating Broker-Dealers, and shall also contain all
other information with respect to such resales by Broker-Dealers that the
Commission may require to permit such resales pursuant thereto, but such "Plan
of Distribution" shall not name any such Broker-Dealer or disclose the amount of
Notes held by any such Broker-Dealer except to the extent required by the
Commission as a result of a change in policy after the date of this Agreement.
The Company and the Guarantor shall use their best efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 6(c) below to the extent
necessary to ensure that it is available for resales of Notes acquired by
Broker-Dealers for their own accounts as a result of market-making activities or
other trading activities, and to ensure that it conforms with the requirements
of this Agreement, the Act and the policies, rules and regulations of the
Commission as announced from time to time for a period of nine months from the
date the Exchange Offer is Consummated (as may be extended pursuant to Section
3(e)); provided, however, that, if requested by the Company in the letter of
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transmittal for the Exchange Offer, such persons shall have expressed that they
may be subject to such requirements and have agreed to notify the Company when
they are no longer subject to such requirements (if they are no longer subject
to such requirements at any time prior to the expiration of such nine-month
period (as may be extended pursuant to Section 3(e)). The Company and the
Guarantor shall provide sufficient copies of the latest version of such
Prospectus to Broker-Dealers promptly upon request, and in no event later than
one day after such request, at any time during such period in order to
facilitate such resales.
(d) The Company and the Guarantor shall not consummate the Exchange
Offer later than 150 days following the Closing Date.
(e) The Company may postpone or suspend the filing or effectiveness
of an Exchange Offer Registration Statement (or any amendments or supplements
thereto) for up to an aggregate of 60 days during any consecutive 365-day period
if such action is approved by the Board of Directors of the Company and is taken
by the Company in good faith and for valid business reasons (not including the
avoidance of the Company's obligations hereunder), including the acquisition or
divestiture of assets, any financing, acquisition, corporate reorganization or
other similar transaction, or the premature disclosure of material nonpublic
information which, if disclosed at such time, would be materially harmful to the
interests of the Company and its shareholders, so long as the Company promptly
thereafter complies with the requirements of Section 3(a) hereof. This Section
3(e) shall not affect the Company's obligations to pay liquidated damages
pursuant to Section 5 hereof.
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SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company and the Guarantor are
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not required to file an Exchange Offer Registration Statement or to consummate
the Exchange Offer because the Exchange Offer is not permitted by applicable law
or Commission policy or (ii) any Holder of Transfer Restricted Securities shall
notify the Company within 20 business days of the Consummation of the Exchange
Offer that such Holder (A) is prohibited by applicable law or Commission policy
from participating in the Exchange Offer, or (B) may not resell the New Notes
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)
is a Broker-Dealer and holds Old Notes (including the Initial Purchasers that
hold Old Notes as part of an unsold allotment from the original offering of the
Notes) acquired directly from the Company or one of its affiliates or (iii) the
Company and the Guarantor do not consummate the Exchange Offer within 60 days
following the effectiveness date of the Exchange Offer Registration Statement,
then the Company and the Guarantor shall (x) cause to be filed a shelf
registration statement pursuant to Rule 415 under the Act, which may be an
amendment to the Exchange Offer Registration Statement (in either event, the
"Shelf Registration Statement"), on or prior to the earliest to occur of (1) the
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60th day after the date on which the Company determines that it is not required
to file the Exchange Offer Registration Statement or (2) the 60th day after the
date on which the Company receives notice from a Holder of Transfer Restricted
Securities as contemplated by clause (ii) above (such earliest date being the
"Shelf Filing Deadline"), which Shelf Registration Statement shall provide for
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resales of all Transfer Restricted Securities the Holders of which shall have
provided the information required pursuant to Section 4(b) of this Agreement,
and (y) use their best efforts to cause such Shelf Registration Statement to be
declared effective by the Commission on or before the 90th day after the Shelf
Filing Deadline. The Company and the Guarantor shall each use its best efforts
to keep such Shelf Registration Statement continuously effective, supplemented
and amended as required by the provisions of Sections 6(b) and (c) of this
Agreement to the extent necessary to ensure that it is available for resales of
Notes by the Holders of Transfer Restricted Securities entitled to the benefit
of this Section 4(a) and to ensure that it conforms to the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, until the Maturity (as defined in the Indenture) of
the Notes or such shorter period that will terminate when all the Notes covered
by the Shelf Registration Statement have been sold pursuant to such Shelf
Registration Statement.
(b) The Company may postpone or suspend the filing or effectiveness
of a Shelf Registration Statement (or any amendments or supplements thereto) (i)
if such action is required by applicable law or (ii) for up to an aggregate of
60 days during any consecutive 365-day period, if such action is approved by the
Board of Directors of the Company and is taken by the Company in good faith and
for valid business reasons (not including the avoidance of the Company's
obligations hereunder), including the acquisition or divestiture of assets, any
financing, acquisition, corporate reorganization or other similar transaction or
the premature disclosure of material nonpublic information which, if disclosed
at such time, would be materially harmful to the interests of the Company and
its shareholders, so long as the Company promptly thereafter complies with the
requirements of Section 4(a) hereof. This Section 4(b) shall not affect the
Company's obligations to pay liquidated damages pursuant to
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Section 5 hereof.
(c) Provision by Holders of Certain Information in Connection with
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the Shelf Registration Statement. No Holder of Transfer Restricted Securities
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may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a request therefor, such
information specified in Item 507 of Regulation S-K under the Act or such other
similar information as required under the Act regarding such Holder as the
Company may reasonably request for use in connection with any Shelf Registration
Statement or Prospectus or preliminary prospectus included in such Shelf
Registration Statement. No Holder of Transfer Restricted Securities shall be
entitled to liquidated damages pursuant to Section 5 of this Agreement unless
and until such Holder shall have used its best efforts to provide all such
information. Each Holder as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Company all information required to
be disclosed to make the information previously furnished to the Company by such
Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) the Exchange Offer Registration Statement or the Shelf
Registration Statement is not filed with the Commission on or prior to the date
specified for such filing in Section 3(a) or Section 4(a), respectively, of this
Agreement, (ii) the Exchange Offer Registration Statement or the Shelf
Registration Statement has not been declared effective by the Commission on or
prior to the date specified for such effectiveness in Section 3(a) or Section
4(a), respectively, of this Agreement (the "Effectiveness Target Date"), (iii)
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the Exchange Offer has not been Consummated within 30 days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (iv) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or usable in
connection with resales of Transfer Restricted Securities during the periods
required by this Agreement (each such event referred to in clauses (i) through
(iv), a "Registration Default"), the Company and the Guarantor hereby jointly
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and severally agree to pay liquidated damages to each Holder of Transfer
Restricted Securities with respect to the first 90-day period immediately
following the occurrence of such Registration Default, in an amount equal to
$.05 per week per $1,000 principal amount of Notes constituting Transfer
Restricted Securities held by such Holder for each week or portion thereof that
the Registration Default continues. The amount of the liquidated damages shall
increase by an additional $.05 per week per $1,000 in principal amount of Notes
constituting Transfer Restricted Securities with respect to each subsequent 90-
day period until all Registration Defaults have been cured, up to a maximum
amount of liquidated damages of $.30 per week per $1,000 in principal amount of
Notes constituting Transfer Restricted Securities. All accrued liquidated
damages shall be paid by the Company on each Damages Payment Date to the Holders
by wire transfer of immediately available funds or by federal funds check and to
the Holders of certificated securities by mailing a check to such Holders'
registered addresses. Following the cure of all Registration Defaults relating
to any particular Transfer Restricted Securities, the accrual of liquidated
damages with respect to such Transfer Restricted Securities will cease.
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All obligations of the Company and the Guarantor set forth in the
preceding paragraph that are outstanding with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such obligations with respect to such
Transfer Restricted Security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
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Exchange Offer, the Company and the Guarantor shall comply with all of the
provisions of Section 6(c) below, shall use their best efforts to effect such
exchange to permit the sale of Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof, and
shall comply with all of the following provisions:
(i) If, due to a change in law or Commission policy after the date
hereof, in the reasonable opinion of special counsel to the Company there
is a question as to whether the Exchange Offer is permitted by applicable
federal law or Commission policy, the Company and the Guarantor hereby
agree to seek a no-action letter or other favorable decision from the
Commission allowing the Company and the Guarantor to consummate an Exchange
Offer for such Old Notes. The Company and the Guarantor hereby agree to
pursue the issuance of such a no-action letter or favorable decision to the
Commission staff level. In connection with the foregoing, the Company and
the Guarantor hereby agree to take all such other reasonable actions as are
requested by the Commission or otherwise required in connection with the
issuance of such no-action letter or decision, including without limitation
(A) participating in telephonic conferences with the Commission, (B)
delivering to the Commission an analysis prepared by special counsel to the
Company setting forth the legal bases, if any, upon which such counsel has
concluded that such an Exchange Offer should be permitted and (C)
diligently pursuing a resolution (which need not be favorable) by the
Commission of such submission. The Initial Purchasers shall be given prior
notice of any action taken by the Company under this clause (i).
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer Restricted
Securities shall furnish, upon the request of the Company, prior to the
Consummation of the Exchange Offer, a written representation to the Company
and the Guarantor (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the effect
that (A) it is not an affiliate of the Company or the Guarantor within the
meaning of the Act, (B) it is not engaged in, and does not intend to engage
in, and has no arrangement or understanding with any Person to participate
in, a distribution of the New Notes to be issued in the Exchange Offer and
(C) it is acquiring the New Notes in its ordinary course of business.
Holders of Transfer Restricted Securities shall use their best efforts to
cooperate in the Company's and the Guarantor's preparations for the
Exchange Offer.
(iii) The Company and the Initial Purchasers acknowledge that the
staff of the Commission has taken the position that any broker-dealer that
owns New Notes that were received by such broker-dealer for its own account
in the Exchange Offer (a "Participating Broker-Dealer") may be deemed to be
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an "underwriter" within the meaning of the Act and must deliver a
prospectus meeting the requirements of the Act
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in connection with any resale of such New Notes. Further, the Company and
the Initial Purchasers acknowledge that the Initial Purchasers may not
exchange in the Exchange Offer Old Notes representing unsold allotments
resulting from the original offering of the Old Notes.
The Company and the Initial Purchasers also acknowledge that it is the
Commission staff's current position that if the Prospectus contained in the
Exchange Offer Registration Statement includes a plan of distribution
containing a statement to the above effect and the means by which
Participating Broker-Dealers may resell the New Notes, without naming the
Participating Broker-Dealers or specifying the amount of New Notes owned by
them, such Prospectus may be delivered by Participating Broker-Dealers to
satisfy their prospectus delivery obligations under the Act in connection
with resales of New Notes for their own accounts (other than a resale of an
unsold allotment resulting from the original offering of the Notes), so
long as the Prospectus otherwise meets the requirements of the Act.
(b) Shelf Registration Statement. In the event that a Shelf
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Registration Statement is required by this Agreement, the Company and the
Guarantor shall comply with all the provisions of Section 6(c) of this Agreement
and shall use their best efforts to effect such registration to permit the sale
of the Transfer Restricted Securities being sold in accordance with the intended
method or methods of distribution of such Transfer Restricted Securities and, in
connection therewith, the Company and the Guarantor will, as expeditiously as
possible, prepare and file with the Commission a Shelf Registration Statement
relating to the registration on any appropriate form under the Act, which form
shall be available for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution of such Transfer
Restricted Securities within the time periods and otherwise in accordance with
the provisions of this Agreement.
(c) General Provisions. In connection with any Registration
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Statement and any Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus, to the extent that the same
are required to be available to permit resales of Notes by Broker-Dealers), the
Company and the Guarantor shall:
(i) use their best efforts to keep such Registration Statement
continuously effective for the applicable time period required hereunder
and provide all requisite financial statements (including, if required by
the Act or any regulation thereunder, financial statements of the
Guarantor) for the period specified in Section 3 or 4 of this Agreement, as
applicable; upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not to be effective and usable for
resale of Transfer Restricted Securities during the period required by this
Agreement, the Company and the Guarantor shall promptly notify the Holders
to suspend use of the Prospectus, and the Holders shall suspend use of the
Prospectus until the Company and the Guarantor have made an appropriate
amendment to such Registration Statement, in the case of clause (A),
correcting any such misstatement or omission, and, in the case of either
clause (A) or (B), the Company and the Guarantor shall use their best
efforts to cause such amendment to be declared effective and such
Registration Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable
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thereafter;
(ii) prepare and file with the Commission such pre-effective and
post-effective amendments to such Registration Statement as may be
necessary to keep the Registration Statement effective for the applicable
period set forth in Section 3 or 4 of this Agreement, or such shorter
period as will terminate when all Transfer Restricted Securities covered by
such Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Act during the applicable time
period required hereunder and to comply fully with the applicable
provisions of Rules 424 and 430A under the Act in a timely manner; and
comply with the provisions of the Act and the Exchange Act applicable to
the Company and the Guarantor with respect to the disposition of all
Transfer Restricted Securities covered by such Registration Statement
during such period in accordance with the intended method or methods of
distribution by the sellers of such securities set forth in such
Registration Statement as so amended or in such Prospectus as so
supplemented;
(iii) advise the underwriter(s), if any, the Initial Purchasers, and,
in the case of a Shelf Registration Statement, each of the selling Holders
promptly and, if requested by such Persons, confirm such advice in writing,
(A) when the Prospectus or any prospectus supplement or post-effective
amendment has been filed and, with respect to any Registration Statement or
any post-effective amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for additional
information relating to such Registration Statement or Prospectus, (C) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of the
suspension by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for any of the preceding purposes, (D) of
the existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement to such Registration Statement or
Prospectus, as the case may be, or any document incorporated by reference
in such Registration Statement or Prospectus untrue, or that requires the
making of any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements in such Registration Statement
or Prospectus not misleading and that, in the case of the Prospectus, it
will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement, or any
state securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws, the
Company and the Guarantor shall use their best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(iv) furnish to each of the underwriter(s), if any, the Initial
Purchasers and, in the case of a Shelf Registration Statement, each of the
selling Holders, before filing with the Commission, copies of any
Registration Statement or any Prospectus included
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in such Registration Statement or Prospectus or any amendments or
supplements to any such Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review and
comment of such underwriter(s), if any, the Initial Purchasers, and such
Holders for a period of at least five business days, and the Company and
the Guarantor will not file any such Registration Statement or Prospectus
or any amendment or supplement to any such Registration Statement or
Prospectus, as the case may be (including all such documents incorporated
by reference), to which any underwriter, Initial Purchaser or selling
Holder shall reasonably object within five business days after the receipt
of such Registration Statement or Prospectus;
(v) in connection with any Shelf Registration Statement and, in the
case of Participating Broker-Dealers, any Exchange Offer Registration
Statement, promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus, (A)
provide copies of such document to the selling Holders (including
Participating Broker-Dealers, if any) and to the underwriter(s), if any,
(B) make the Company's and the Guarantor's representatives reasonably
available for discussion of such document and other customary due diligence
matters; provided that such discussion and due diligence shall be
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coordinated on behalf of the selling Holders by one counsel designated by
and on behalf of such selling Holders and (C) include such information in
such document prior to the filing of such document as such selling Holders
or underwriter(s), if any, may reasonably request;
(vi) make available at reasonable times for inspection by the selling
Holders, any underwriter participating in any disposition pursuant to such
Registration Statement and any attorney or accountant retained by such
selling Holders or any of the underwriter(s), if any, at the offices where
normally kept, during reasonable business hours, all relevant financial and
other records, pertinent corporate documents and properties of the Company
and the Guarantor and cause the Company's and the Guarantor's officers,
directors and employees to supply all information reasonably requested by
any such Holder, underwriter, attorney or accountant in connection with
such Registration Statement subsequent to the filing thereof and prior to
its effectiveness; provided, however, that any information that is
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designated in writing by the Company, in good faith, as confidential at the
time of delivery of such information shall be kept confidential by such
selling Holders, underwriters, attorney or accountant, unless such
disclosure is made in connection with a court proceeding or required by
law, or such information becomes available to the public generally or
through a third party without an accompanying, obligation of
confidentiality. Each selling Holder, underwriter, attorney or accountant
requesting disclosure will agree that it will, upon learning that
disclosure of such information is sought in connection with a court
proceeding, give notice to the Company and the Guarantor and allow them at
their own expense to undertake appropriate action to prevent disclosure of
the information deemed confidential;
(vii) if requested by any selling Holders or the underwriter(s), if
any, promptly include in any Registration Statement or Prospectus, pursuant
to a supplement or post-effective amendment if necessary, such information
as such selling Holders and underwriter(s), if any, may reasonably request
to have included therein, including,
12
without limitation, information relating to the "Plan of Distribution" of
the Transfer Restricted Securities, information with respect to the
principal amount of Transfer Restricted Securities being sold to such
underwriter(s), the purchase price being paid for Transfer Restricted
Securities and any other terms of the offering of the Transfer Restricted
Securities to be sold in such offering; and make all required filings of
such Prospectus supplement or post-effective amendment as soon as
practicable after the Company and the Guarantor are notified of the matters
to be included in such Prospectus supplement or post-effective amendment;
provided, however, that the Company and the Guarantor shall not be required
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to take any action pursuant to this Section 6(c)(vii) that would, in the
opinion of counsel for the Company, violate applicable law;
(viii) furnish to each underwriter, if any, the Initial Purchasers
and selling Holders, without charge, at least one conformed copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference that are expressly requested by such persons);
(ix) deliver to each selling Holder, each of the underwriter(s), if
any, and the Initial Purchasers, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons may reasonably request; the Company and
the Guarantor hereby consent to the use of the Prospectus and any amendment
or supplement to the Prospectus by each of the selling Holders and each of
the underwriter(s), if any, in connection with the offering and the sale of
the Transfer Restricted Securities in accordance with the terms thereof and
with U.S. federal securities laws and Blue Sky laws covered by the
Prospectus or any amendment or supplement thereto;
(x) enter into such agreements (including an underwriting agreement
in form, scope and substance as is customary in underwritten offerings of
securities of this type) and take all such other reasonable actions in
connection therewith in order to expedite or facilitate the disposition of
the Transfer Restricted Securities pursuant to any Registration Statement
contemplated by this Agreement, all as may be reasonably requested by any
Holder of Transfer Restricted Securities or the underwriter(s), if any, in
connection with any sale or resale of Transfer Restricted Securities
pursuant to any Registration Statement contemplated by this Agreement; and
whether or not an underwriting agreement is entered into and whether or not
the registration is an Underwritten Registration, the Company and the
Guarantor shall
(A) make such representations and warranties to the Holders of
such Transfer Restricted Securities and the underwriters, if any, with
respect to the business of the Company and its Subsidiaries (including
with respect to businesses or assets acquired or to be acquired by any
of them), and the Shelf Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings,
and confirm the same if and when customarily requested;
13
(B) use its best efforts to obtain opinions of counsel to the
Company and the Guarantor and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably
satisfactory to the underwriters, if any, and special counsel to the
Holders of the Transfer Restricted Securities being sold), addressed
to each selling Holder of Transfer Restricted Securities and each of
the underwriters, if any, covering the matters customarily covered in
opinions requested in underwritten offerings and such other matters as
may be reasonably requested by such underwriters, if any, and special
counsel to Holders of Transfer Restricted Securities;
(C) use their best efforts to obtain customary "cold comfort"
letters and updates thereof 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 or any such subsidiary for which
financial statements and financial data is, or is required to be,
included in the Registration Statement), addressed to each selling
Holder of Transfer Restricted Securities and each of the underwriters,
if any, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection
with underwritten offerings;
(D) if an underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less favorable to
the selling Holders and the underwriters, if any, than those set forth
in Section 8 hereof (or such other provisions and procedures
acceptable to Holders of a majority in aggregate principal amount of
Transfer Restricted Securities covered by such Shelf Registration
Statement and the underwriters, if any); and
(E) deliver such documents and certificates as may be reasonably
requested by the Holders of a majority in aggregate principal amount
of the Transfer Restricted Securities being sold and the underwriters,
if any, to evidence the continued validity of the representations and
warranties made pursuant to clause (A) above and to evidence
compliance with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company and the
Guarantor.
If at any time the representations and warranties of the Company and
the Guarantor contemplated in clause (x)(A) above cease to be true and
correct, the Company or the Guarantor shall so advise the Initial
Purchasers and the underwriter(s), if any, and each selling Holder promptly
and, if requested by any of them, shall confirm such advice in writing;
(xi) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration and qualification
(or exemption from such registration or qualification) of the Transfer
Restricted Securities for offer and sale under the securities or Blue Sky
laws of such jurisdictions as the selling Holders and underwriter(s), if
any, may reasonably request and do any and all other reasonable acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the
14
Transfer Restricted Securities covered by the Registration Statement;
provided, however, that neither the Company nor the Guarantor shall be
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required to register or qualify as a foreign corporation where it is not
now so qualified or to take any action that would subject it to the service
of process or to taxation, other than as to matters and transactions
relating to the Registration Statement, in any jurisdiction where it is not
now so subject;
(xii) in connection with any sale or transfer of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and delivery
of certificates representing Transfer Restricted Securities to be sold and
not bearing any restrictive legends; and enable such Transfer Restricted
Securities to be in such denominations and registered in such names as the
Holders or the underwriter(s), if any, may request at least two business
days prior to any sale of Transfer Restricted Securities made by such
underwriter(s);
(xiii) use its best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers of such Transfer Restricted
Securities or the underwriter(s), if any, to consummate the disposition of
such Transfer Restricted Securities, subject to the proviso contained in
clause (xi) above;
(xiv) if any fact or event contemplated by Section 6(c)(iii)(D) of
this Agreement shall exist or have occurred, prepare a supplement or post-
effective amendment to the Registration Statement or related Prospectus or
any document incorporated in such Registration Statement or Prospectus by
reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the
Registration Statement will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein not misleading and the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements contained therein, in
the light of the circumstances under which they were made, not misleading;
(xv) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of the Registration Statement and provide
the Trustee under the Indenture with certificates for the Transfer
Restricted Securities that are in a form eligible for deposit with The
Depository Trust Company;
(xvi) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
"qualified independent underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD;
(xvii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission in regards to any Registration
Statement, and make generally available to its securityholders, as soon as
practicable, a consolidated earning statement of the Company and the
Guarantor meeting the requirements of Rule 158
15
(which need not be audited) for the twelve-month period (A) commencing at
the end of any fiscal quarter in which Transfer Restricted Securities are
sold to underwriters in a firm commitment or reasonable best efforts
Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration Statement;
and
(xviii) cause the Indenture or such other indenture for the New Notes
to be qualified under the TIA not later than the effective date of the
first Registration Statement required by this Agreement, and, if
applicable, in connection therewith, cooperate with the Trustee and the
Holders to effect such changes to the Indenture, if any, as may be required
for such Indenture to be so qualified in accordance with the terms of the
TIA; and execute, and use its best efforts to cause the Trustee to execute,
all customary documents that may be required to effect such changes and all
other forms and documents required to be filed with the Commission to
enable such Indenture to be so qualified in a timely manner.
16
The Company may require each Holder to furnish to the Company such
information specified in Item 507 of Regulation S-K under the Act or such other
similar information as required under the Act regarding such Holder as the
Company may reasonably request, and the Company may exclude from such
registration the New Notes of any Holder who fails to furnish such information
within a reasonable period of time after receiving such request. Each Holder as
to which any Shelf Registration is being effected shall furnish promptly to the
Company, upon its request, all information required to be disclosed in order to
make the information previously furnished to the Company by such Holder not
materially misleading. Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of any notice from the Company of the
existence of any fact of the kind described in Section 6(c)(iii)(D) of this
Agreement, such Holder will forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the applicable Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xv) of this Agreement, or until it is advised in
writing (the "Advice") by the Company that the use of the Prospectus may be
------
resumed, and has received copies of any additional or supplemental filings that
are incorporated by reference in the Prospectus. If so directed by the Company,
each Holder will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Transfer Restricted Securities that was current at the
time of receipt of such notice. In the event that the Company shall give any
such notice, the time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 of this Agreement, as applicable, shall be
extended by the number of days during the period from and including the date of
the giving of such notice pursuant to Section 6(c)(iii)(D) of this Agreement to
and including the date when each selling Holder covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(xv) of this Agreement or, if no such
supplemented or amended Prospectus is required, when it shall have received the
Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All fees and expenses incident to the Company's and the
Guarantor's performance of or compliance with this Agreement will be borne by
the Company regardless of whether a Registration Statement becomes effective,
including, without limitation: (i) all registration and filing fees and
expenses (including required filings made by any Initial Purchaser or Holder
with the NASD (and, if applicable, the reasonable fees and expenses of any
"qualified independent underwriter" and its counsel that may be required by the
rules and regulations of the NASD)); (ii) all fees and expenses of compliance
with federal securities and state Blue Sky or securities laws; (iii) all
expenses of printing (including printing certificates for the New Notes to be
issued in the Exchange Offer and printing of Prospectuses); (iv) all fees and
disbursements of counsel for the Company, the Guarantor and, subject to Section
7(b) below, all reasonable fees and disbursements of counsel for the Holders of
Transfer Restricted Securities; (v) all fees and disbursements of independent
certified public accountants of the Company and the Guarantor (including the
expenses of any comfort letters required by or incident to such performance);
and (vi) all fees and expenses of the Trustee and any exchange agent and the
fees and disbursements of its counsel.
The Company will, in any event, bear its and the Guarantor's
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expenses
of any annual audit and the fees and
17
expenses of any Person, including special experts, retained by the Company or
the Guarantor.
Notwithstanding the foregoing or anything in this Agreement to the
contrary, each Holder of Transfer Restricted Securities shall pay all
underwriting discounts and commissions of any underwriters with respect to any
Notes sold by or on behalf of it.
18
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company and the Guarantor
will reimburse the Initial Purchasers and the Holders of Transfer Restricted
Securities being tendered in the Exchange Offer and/or resold pursuant to the
"Plan of Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Shearman & Sterling or such other counsel as may be chosen by the Holders of a
majority in principal amount of the Transfer Restricted Securities for whose
benefit such Registration Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantor, jointly and severally, agree to
indemnify and hold harmless (i) the Initial Purchasers (in their capacity as
such), each Holder of Transfer Restricted Securities and each Participating
Broker-Dealer, (ii) each person, if any, who controls any of the foregoing
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act
(any of the persons referred to in this clause (ii) being hereinafter referred
to as a "controlling person") and (iii) the respective agents, employees,
------------------
officers and directors of the Initial Purchasers (in their capacity as such) and
the agents, employees, officers and directors of any Holder or any controlling
person (any person referred to in clause (i), (ii) or (iii) may hereinafter be
referred to as an "Indemnified Person") from and against any and all losses,
------------------
liabilities, claims, damages and expenses whatsoever (including but not limited
to reasonable attorneys' fees and any and all reasonable expenses whatsoever
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, and any and all reasonable
amounts paid in settlement of any claim or litigation) (collectively, "Losses")
to which they or any of them may become subject under the Act, the Exchange Act
or otherwise, insofar as such Losses (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, preliminary prospectus or
Prospectus, or in any supplement thereto or amendment thereof, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company and the Guarantor will not be liable in any
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such case to the extent, but only to the extent, that any such Loss arises out
of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any
Indemnified Person relating to such Indemnified Person expressly for use
therein. Notwithstanding the foregoing, the indemnification contained in this
paragraph with respect to any preliminary prospectus will not inure to the
benefit of any Indemnified Person for any such Loss if any Holder fails to
deliver a copy of the prospectus, as amended or supplemented, at or prior to the
written confirmation of such sale, provided the Company shall have previously
furnished copies thereof to the Holders in accordance with this Agreement, and
the untrue statement or omission or alleged untrue statement or omission giving
rise to such Loss was corrected in the prospectus, as amended or supplemented.
This indemnity agreement will be in addition to any liability that the Company
or the Guarantor may otherwise have, including, but not limited to, under this
Agreement.
19
(b) In connection with any Registration Statement pursuant to which a
Holder of Transfer Restricted Securities offers or sells Transfer Restricted
Securities, such Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company and the Guarantor, their respective agents, employees,
officers and directors and any person controlling the Company or the Guarantor
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act, and the agents, employees, officers and directors of such controlling
person to the same extent as the foregoing indemnity from the Company and the
Guarantor to each Indemnified Person but only with respect to information
relating to such Holder furnished in writing by or on behalf of such Holder
expressly for use in such Registration Statement. In any such case in which any
action or proceeding shall be brought against the Company or the Guarantor, any
agent, employee, officer or director of the Company or the Guarantor or any
person controlling the Company or the Guarantor based on such Registration
Statement and in respect of which indemnity may be sought against a Holder of
Transfer Restricted Securities, such Holder shall have the rights and duties
given to the Company and the Guarantor (except that if the Company or the
Guarantor shall have assumed the defense thereof, such Holder shall not be
required to do so, but may employ separate counsel therein and participate in
the defense thereof but the fees and expenses of such counsel shall be at the
expense of such Holder), and the Company and the Guarantor, their respective
directors and officers and any person controlling the Company or the Guarantor
shall have the rights and duties given to the Indemnified Persons by Section
8(a) hereof. This indemnity agreement will be in addition to any liability which
such Holder may otherwise have to the Company or any of its controlling persons.
(c) Promptly after receipt by an Indemnified Person under this
Section 8 of notice of the commencement of any action, suit or proceeding
(collectively, an "Action"), such Indemnified Person shall, if a claim in
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respect thereof is to be made against the indemnifying party under such
subsection, promptly notify each party against whom indemnification is to be
sought in writing of the commencement of such Action (but the failure so to
notify an indemnifying party shall not relieve such indemnifying party from any
liability that it may have under this Section 8 except to the extent that it has
been prejudiced in any material respect by such failure or from any liability
which it may otherwise have). In case any such Action is brought against any
Indemnified Person, and it notifies an Indemnifying Person of the commencement
of such Action, the indemnifying party will be entitled to participate in such
Action, and to the extent it may elect by written notice delivered to the
Indemnified Person promptly after receiving the aforesaid notice from such
Indemnified Person, to assume the defense of such Action with counsel reasonably
satisfactory to such Indemnified Person. Notwithstanding the foregoing, the
Indemnified Person or Persons shall have the right to employ its or their own
counsel in any such Action, but the fees and expenses of such counsel shall be
at the expense of such Indemnified Person or parties unless (i) the employment
of such counsel shall have been authorized in writing by the Indemnifying
Persons in connection with the defense of such Action, (ii) the indemnifying
parties shall not have employed counsel to take charge of the defense of such
Action within a reasonable time after notice of commencement of the Action, or
(iii) such Indemnified Person or Persons shall have reasonably concluded that
there may be defenses available to it or them that are different from or
additional to those available to one or all of the Indemnifying Persons (in
which case the Indemnifying Persons shall not have the right to direct the
defense of such Action on behalf of the Indemnified Person or Persons), in any
of which events such fees and expenses of counsel shall be borne by the
indemnifying parties. In no event shall the indemnifying party be liable for the
fees and expenses of more than one counsel (together with appropriate local
counsel) at
20
any time for all indemnified parties in connection with any one Action or
separate but substantially similar or related Actions arising out of the same
general allegations or circumstances. Anything in this subsection to the
contrary notwithstanding, an indemnifying party shall not be liable for any
settlement of any claim or Action effected without its written consent;
provided, however, that such consent was not unreasonably withheld.
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(d) In order to provide for contribution in circumstances in which
the indemnification provided for in paragraphs (a) and (b) of this Section 8 is
for any reason held to be unavailable from the indemnifying party, or is
insufficient to hold harmless a party indemnified under this Section 8, the
Company, the Guarantor and the Indemnified Persons shall contribute to the
aggregate Losses of the nature contemplated by such indemnification provision,
but after deducting in the case of Losses suffered by the indemnifying party,
any contribution received by the indemnifying party, from persons other than the
Indemnified Person who may also be liable for contribution, including persons
who control the Indemnified Person within the meaning of Section 15 of the Act
or Section 20(a) of the Exchange Act) to which the Company, the Guarantor and
the Indemnified Persons may be subject, in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Guarantor, on the
one hand, and the Indemnified Persons, on the other hand, from the offering of
the Notes or, if such allocation is not permitted by applicable law or
indemnification is not available as a result of the indemnifying party not
having received notice as provided in paragraph (c) of this Section 8, in such
proportion as is appropriate to reflect not only the relative benefits referred
to above but also the relative fault of the Company and the Guarantor, on the
one hand, and the Indemnified Persons, on the other hand, in connection with the
statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Guarantor shall be deemed to be in the same proportion as the total
proceeds from the offering of Old Notes (net of discounts but before deducting
expenses) received by the Company as set forth in the table on the cover page of
the Prospectus. The relative fault of the Company and the Guarantor, on the one
hand, and the Indemnified Persons, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Guarantor or the
Indemnified Persons and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
21
(e) The Company, the Guarantor and the Initial Purchasers agree
that it would not be just and equitable if contribution pursuant to paragraph
(d) of this Section 8 were determined by pro rata allocation or by any other
method of allocation that does not take into account the equitable
considerations referred to above. Notwithstanding the provisions of paragraph
(d) of this Section 8, (i) in no case shall an Indemnified Person be required to
contribute any amount in excess of the amount by which the total received by
such Indemnified Person with respect to its sale of its Transfer Restricted
Securities or New Notes, as the case may be, exceeds the amount of any damages
that such Indemnified Person has otherwise been required to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of paragraphs (d) and
(e) of this Section 8, each person, if any, who controls an Indemnified Person
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act
shall have the same rights to contribution as such Indemnified Person, and each
person, if any, who controls the Company or the Guarantor within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act shall have the same
rights to contribution as the Company or the Guarantor, subject in each case to
clauses (i) and (ii) of this Section 8(e). Any party entitled to contribution
will, promptly after receipt of notice of commencement of any Action against
such party in respect of which a claim for contribution may be made against
another party or parties under paragraph 8(d) or (e) of this Section 8, notify
such party or parties from whom contribution may be sought, but the omission to
so notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under
paragraph (d) or (e) of this Section 8 or otherwise. No party shall be liable
for contribution with respect to any Action or claim settled without its written
consent; provided, however, that such written consent shall not be unreasonably
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withheld.
SECTION 9. RULE 144A
The Company and the Guarantor agree with each Holder, for so long as
any Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities and any prospective
purchaser of such Transfer Restricted Securities designated by such Holder or
beneficial owner and to Broker-Dealers, upon their request, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration under
this Agreement unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in customary underwriting
arrangements approved by the Persons entitled under this Agreement to approve
such arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorneys, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
22
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided that such investment bankers and managers must be
--------
reasonably satisfactory to the Company.
SECTION 12. MISCELLANEOUS
(a) Remedies. Each Holder, in addition to being entitled to
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exercise all rights provided in this Agreement, in the Indenture, the Purchase
Agreement or granted by law, including recovery of liquidated or other damages,
will be entitled to specific performance of its rights under this Agreement. The
Company and the Guarantor agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by them of the
provisions of this Agreement and hereby agree to waive the defense in any Action
for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor the
--------------------------
Guarantor will on or after the date of this Agreement enter into any agreement
with respect to its securities that is inconsistent with the rights granted to
the Holders in this Agreement or otherwise conflicts with the provisions of this
Agreement. Neither the Company nor the Guarantor has previously entered into any
agreement granting any registration rights with respect to its respective
securities to any Person, except as disclosed in the Offering Memorandum dated
November 24, 1997 relating to the Old Notes and in the Offering Memorandum dated
November 24, 1997 relating to the offering of units by the Guarantor. The rights
granted to the Holders under this Agreement do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's
securities under any agreement in effect on the date of this Agreement.
(c) Adjustments Affecting the Notes. Without the written consent
-------------------------------
of the Holders of a majority in aggregate principal amount of outstanding
Transfer Restricted Securities, the Company and the Guarantor will not take any
action, or permit any change to occur, with respect to the Notes that would
materially and adversely affect the ability of the Holders to Consummate any
Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may
----------------------
not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions of this Agreement may not be given unless (i) in
the case of Section 5 hereof and this Section 12(d)(i), the Company has obtained
the written consent of each affected Holder of outstanding Transfer Restricted
Securities and (ii) in the case of all other provisions hereof, the Company and
the Guarantor have obtained the written consent of Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities. Notwithstanding
the foregoing, a waiver or consent to departure from the provisions of this
Agreement that relates exclusively to the rights of Holders whose securities are
being sold or tendered pursuant to the Exchange Offer and that does not affect
directly or indirectly the rights of other Holders whose securities are not
being sold or tendered pursuant to such Exchange Offer may be given by the
Holders of a majority of the outstanding principal amount of Transfer Restricted
23
Securities subject to such Exchange Offer.
(e) Notices. All notices and other communications provided for or
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permitted hereunder shall be made in writing by hand-delivering, first-class
mail (registered or certified, return receipt requested), telex, telecopier or
air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company or the Guarantor, at:
▇▇▇▇▇▇▇ Acquisition Inc.
c/o Saratoga Partners III, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
All such notices and communications shall be deemed to have been duly
given: (i) at the time delivered by hand, if personally delivered; (ii) five
business days after being deposited in the mail, postage prepaid, if mailed;
(iii) when answered back, if telexed; (iv) when receipt acknowledged, if
telecopied; and (v) on the next business day, if timely delivered to an air
courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors and permitted assigns of each of
the parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties to this Agreement 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.
(h) Headings. The headings in this Agreement are for convenience of
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24
reference only and shall not limit or otherwise affect the meaning of this
Agreement.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. In the event that any one or more of the
------------
provisions contained in this Agreement, or the application of any such provision
in any circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained in this Agreement shall not be affected or
impaired thereby.
(k) Entire Agreement. This Agreement together with the other
----------------
Operative Documents (as defined in the Purchase Agreement) is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties to
this Agreement in respect of the subject matter contained in this Agreement.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to in this Agreement with respect to the
registration rights granted by the Company and the Guarantor with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
[Signatures on Next Page]
25
[Registration Rights Agreement - Signature Page]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
▇▇▇▇▇▇▇ ACQUISITION INC.
By:___________________________________
Name:
Title:
▇▇▇▇▇▇▇ HOLDINGS INC.
By:___________________________________
Name:
Title:
[Registration Rights Agreement -
Initial Purchasers' Signature Page]
Accepted and agreed as of the date first
above written:
SBC WARBURG DILLON READ INC.
BT ALEX. ▇▇▇▇▇ INCORPORATED
By: SBC WARBURG DILLON READ
INC.
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title: