EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated April 18, 2002 (the
"Agreement") is entered into by and among ▇▇▇▇▇▇▇ Corporation, an Alabama
corporation (the "Company"), the guarantors listed in Schedule 1 hereto (the
"Guarantors"), and ▇.▇. ▇▇▇▇▇▇ Securities Inc., Fleet Securities, Inc., ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, SunTrust Capital Markets, Inc. and
First Union Securities, Inc. (the "Initial Purchasers").
The Company, the Guarantors and the Initial Purchasers are parties to
the Purchase Agreement dated April 11, 2002 (the "Purchase Agreement"), which
provides for the sale by the Company to the Initial Purchasers of $250,000,000
aggregate principal amount of the Company's 9.25% Senior Notes due 2010 (the
"Securities") which will be guaranteed on an unsecured senior basis by each of
the Guarantors. As an inducement to the Initial Purchasers to enter into the
Purchase Agreement, the Company and the Guarantors have agreed to provide to
the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Business Day" shall mean any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed.
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Dates" shall have the meaning set forth in Section 2(a)(ii)
hereof.
"Exchange Offer" shall mean the exchange offer by the Company and the
Guarantors of Exchange Securities for Registrable Securities pursuant to
Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
any document incorporated by reference therein.
"Exchange Securities" shall mean senior notes issued by the Company
and guaranteed by the Guarantors under the Indenture containing terms
substantially similar to the Securities (except that the Exchange Securities
will not be subject to restrictions on transfer or to any increase in annual
interest rate for failure to comply with this Agreement) and to be offered to
Holders of Securities in exchange for Securities pursuant to the Exchange
Offer.
"Guarantors" shall have the meaning set forth in the preamble and
shall also include any Guarantor's successors.
"Holders" shall mean the Initial Purchasers, for so long as they own
any Registrable Securities, and each of their successors, assigns and direct
and indirect transferees who become owners of Registrable Securities under the
Indenture; provided that for purposes of Sections 4 and 5 of this Agreement,
the term "Holders" shall include Participating Broker-Dealers.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Indenture" shall mean the Indenture relating to the Securities dated
as of April 18, 2002 among the Company, the Guarantors and Wachovia Bank,
National Association, as trustee, and as the same may be amended from time to
time in accordance with the terms thereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities owned
directly or indirectly by the Company or any of its affiliates shall not be
counted in determining whether such consent or approval was given by the
Holders of such required percentage or amount.
"Participating Broker-Dealers" shall have the meaning set forth in
Section 4(a) hereof.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Purchase Agreement" shall have the meaning set forth in the preamble.
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"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
any document incorporated by reference therein.
"Registrable Securities" shall mean the Securities; provided that the
Securities shall cease to be Registrable Securities (i) when a Registration
Statement with respect to such Securities has been declared effective under the
Securities Act and such Securities have been exchanged or disposed of pursuant
to such Registration Statement, (ii) when such Securities are eligible to be
sold pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act or (iii) when such Securities cease to be
outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company and the Guarantors with this
Agreement, including without limitation: (i) all SEC, stock exchange or
National Association of Securities Dealers, Inc. registration and filing fees,
(ii) all fees and expenses incurred in connection with compliance with state
securities or blue sky laws (including reasonable fees and disbursements of
counsel for any Underwriters or Holders in connection with blue sky
qualification of any Exchange Securities or Registrable Securities), (iii) all
expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any
Prospectus and any amendments or supplements thereto, any underwriting
agreements, securities sales agreements or other similar agreements and any
other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating
to the qualification of the Indenture under applicable securities laws, (vi)
the fees and disbursements of the Trustee and its counsel, (vii) the reasonable
fees and disbursements of counsel for the Company and the Guarantors and, in
the case of a Shelf Registration Statement, the fees and disbursements of one
counsel for the Holders (which counsel shall be selected by the Majority
Holders and which counsel may also be counsel for the Initial Purchasers) and
(viii) the fees and disbursements of the independent public accountants of the
Company and the Guarantors, including the expenses of any special audits or
"comfort" letters required by or incident to the performance of and compliance
with this Agreement, but excluding fees and expenses of counsel to the
Underwriters (other than fees and expenses set forth in clause (ii) above) or
the Holders and underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company and the Guarantors that covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement and all
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amendments and supplements to any such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and any document incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company and the Guarantors that covers all the Registrable
Securities (but no other securities unless approved by the Holders whose
Registrable Securities are to be covered by such Shelf Registration Statement)
on an appropriate form under Rule 415 under the Securities Act, or any similar
rule that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference therein.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended from time to time.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
"Underwritten Offering" shall mean an offering in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
2. Registration Under the Securities Act. (a) To the extent not
prohibited by any applicable law or applicable interpretations of the Staff of
the SEC, the Company and the Guarantors shall use their reasonable best efforts
to (i) cause to be filed an Exchange Offer Registration Statement covering an
offer to the Holders to exchange all the Registrable Securities for Exchange
Securities and (ii) have such Registration Statement remain effective until the
closing of the Exchange Offer. The Company and the Guarantors shall commence the
Exchange Offer as promptly as is reasonably practical after the Exchange Offer
Registration Statement is declared effective by the SEC and use their reasonable
best efforts to complete the Exchange Offer not later than 60 days after such
effective date.
The Company and the Guarantors shall commence the Exchange Offer by
mailing the related Prospectus, appropriate letters of transmittal and other
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accompanying documents to each Holder stating, in addition to such other
disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement and
that all Registrable Securities validly tendered and not properly
withdrawn will be accepted for exchange, subject to the conditions of
the Exchange Offer;
(ii) the dates of acceptance for exchange (which shall be a period of at
least 20 Business Days from the date such notice is mailed) (the
"Exchange Dates");
(iii) that any Registrable Security not tendered will remain outstanding and
continue to accrue interest but will not retain any rights under this
Agreement;
(iv) that any Holder electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Security, together with the appropriate letters of
transmittal, to the institution and at the address (located in the
Borough of Manhattan, The City of New York) and in the manner
specified in the notice, prior to the close of business on the last
Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later
than the close of business on the last Exchange Date, by sending to
the institution and at the address (located in the Borough of
Manhattan, The City of New York) specified in the notice, a telegram,
telex, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Securities delivered for
exchange and a statement that such Holder is withdrawing its election
to have such Securities exchanged.
As a condition to participating in the Exchange Offer, a Holder will
be required to represent to the Company and the Guarantors in writing (which
may be obtained in the applicable letter of transmittal) that (i) any Exchange
Securities to be received by it will be acquired in the ordinary course of its
business, (ii) at the time of the commencement of the Exchange Offer it has no
arrangement or understanding with any Person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Securities in
violation of the provisions of the Securities Act, (iii) it is not an
"affiliate" (within the meaning of Rule 405 under Securities Act) of the
Company or any Guarantor and (iv) if such Holder is a broker-dealer that will
receive Exchange Securities for its own account in exchange for Registrable
Securities that were acquired as a result of market-making or other trading
activities, then such Holder will deliver a Prospectus in connection with any
resale of such Exchange Securities.
As soon as reasonably practicable after the last Exchange Date, the
Company and the Guarantors shall:
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(i) accept for exchange Registrable Securities or portions thereof validly
tendered and not properly withdrawn pursuant to the Exchange Offer;
and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all
Registrable Securities or portions thereof so accepted for exchange by
the Company and issue, and cause the Trustee to promptly authenticate
and deliver to each Holder, Exchange Securities equal in principal
amount to the principal amount of the Registrable Securities
surrendered by such Holder.
The Company and the Guarantors shall use their reasonable best efforts
to complete the Exchange Offer as provided above and shall comply with the
applicable requirements of the Securities Act, the Exchange Act and other
applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than (i) that the
Exchange Offer does not violate any applicable law or applicable
interpretations of the Staff of the SEC; (ii) no action or proceeding shall
have been instituted or threatened in any court or by any governmental agency
that might materially impair the ability of the Company or the Guarantors to
proceed with the Exchange Offer; (iii) all governmental approvals shall have
been obtained, which approvals the Company deems necessary for the consummation
of the Exchange Offer; and (iv) there has not been proposed, adopted or enacted
any law, statute, rule or regulation that, in the reasonable judgment of the
Company, would materially impair the ability of the Company to consummate the
Exchange Offer.
(b) In the event that (i) the Company and the Guarantors
determine that the Exchange Offer Registration provided for in Section 2(a)
above is not available or may not be completed as soon as practicable after the
last Exchange Date because it would violate any applicable law or applicable
interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any
other reason consummated on or prior to the date that is 210 days after Closing
Date or (iii) the Exchange Offer has been completed and in the opinion of
counsel for the Initial Purchasers a Registration Statement must be filed and a
Prospectus must be delivered by the Initial Purchasers in connection with any
offering or sale of Registrable Securities, the Company and the Guarantors
shall use their reasonable best efforts to cause to be filed as soon as
reasonably practicable after such determination, date or notice of such opinion
of counsel is given to the Company, as the case may be, a Shelf Registration
Statement providing for the sale of all the Registrable Securities by the
Holders thereof and to have such Shelf Registration Statement declared
effective by the SEC; provided, however, that no Holder (other than the Initial
Purchasers) shall be entitled to have the Securities held by it covered by such
Shelf Registration Statement unless such Holder agrees in writing to be bound
by all of the provisions of this Agreement applicable to such Holder.
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In the event that the Company and the Guarantors are required to file
a Shelf Registration Statement solely as a result of the matters referred to in
clause (iii) of the preceding sentence, the Company and the Guarantors shall
use their reasonable best efforts to file and have declared effective by the
SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with
respect to all Registrable Securities and a Shelf Registration Statement (which
may be a combined Registration Statement with the Exchange Offer Registration
Statement) with respect to offers and sales of Registrable Securities held by
the Initial Purchasers after completion of the Exchange Offer.
The Company and the Guarantors agree to use their reasonable best
efforts to keep the Shelf Registration Statement continuously effective until
the expiration of the period referred to in Rule 144(k) under the Securities
Act with respect to the Registrable Securities or such shorter period that will
terminate when all the Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement. The
Company and the Guarantors further agree to supplement or amend the Shelf
Registration Statement and the related Prospectus if required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration Statement or by the Securities Act or by
any other rules and regulations thereunder for shelf registration or if
reasonably requested by a Holder of Registrable Securities with respect to
information relating to such Holder, and to use their reasonable best efforts
to cause any such amendment to become effective and such Shelf Registration
Statement and Prospectus to become usable as soon as thereafter practicable.
The Company and the Guarantors agree to furnish to the Holders of Registrable
Securities copies of any such supplement or amendment promptly after its being
used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration
Expenses in connection with the registration pursuant to Section 2(a) and
Section 2(b) hereof. Each Holder shall pay all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
such Holder's Registrable Securities pursuant to the Shelf Registration
Statement.
(d) An Exchange Offer Registration Statement pursuant to Section
2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC; provided that if, after it has been declared effective,
the offering of Registrable Securities pursuant to a Shelf Registration
Statement is interfered with by any stop order, injunction or other order or
requirement of the SEC or any court or other governmental or regulatory agency
or body, such Registration Statement will be deemed not to have become
effective during the period of such interference until the offering of
Registrable Securities pursuant to such Registration Statement may legally
resume.
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In the event that either the Exchange Offer is not completed (other
than due to the failure of Holders to tender Securities therein) or the Shelf
Registration Statement, if required hereby, is not declared effective on or
prior to the date that is 210 days after Closing Date, the interest rate on the
Registrable Securities will be increased by 1.00% per annum until the Exchange
Offer is completed or the Shelf Registration Statement, if required hereby, is
declared effective by the SEC or the Securities become freely tradable under
the Securities Act. For purposes of this paragraph, the term "Registrable
Securities" shall not include any Securities that could have been exchanged in
the Exchange Offer for freely transferable securities.
(e) Without limiting the remedies available to the Initial
Purchasers and the Holders, the Company and the Guarantors acknowledge that any
failure by the Company or the Guarantors to comply with their obligations under
Section 2(a) and Section 2(b) hereof may result in material irreparable injury
to the Initial Purchasers or the Holders for which there is no adequate remedy
at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial Purchasers or
any Holder may obtain such relief as may be required to specifically enforce
the Company's and the Guarantors' obligations under Section 2(a) and Section
2(b) hereof.
3. Registration Procedures. In connection with their obligations
pursuant to Section 2(a) and Section 2(b) hereof, the Company and the
Guarantors, except to the extent that such obligation is specifically limited
to a party herein, shall as soon as reasonably practicable:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected by
the Company and the Guarantors, (y) shall, in the case of a Shelf Registration,
be available for the sale of the Registrable Securities by the selling Holders
thereof and (z) shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith; and use their reasonable best
efforts to cause such Registration Statement to become effective and remain
effective for the applicable period in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement effective for the applicable period in
accordance with Section 2 hereof and cause each Prospectus to be supplemented
by any required prospectus supplement and, as so supplemented, to be filed
pursuant to Rule 424 under the Securities Act; and keep each Prospectus current
during the period described in Section 4(3) of and Rule 174 under the
Securities Act that is applicable to transactions by brokers or dealers with
respect to the Registrable Securities or Exchange Securities;
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(c) in the case of a Shelf Registration, either the Company or
any Guarantor shall furnish to each Holder of Registrable Securities included
in the Shelf Registration Statement, to counsel for the Initial Purchasers, to
counsel for such Holders and to each Underwriter of an Underwritten Offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto, as such Person may reasonably request, in order to
facilitate the sale or other disposition of the Registrable Securities
thereunder; and the Company and the Guarantors consent to the use of such
Prospectus and any amendment or supplement thereto in accordance with
applicable law by each of the selling Holders of Registrable Securities and any
such Underwriters in connection with the offering and sale of the Registrable
Securities covered by and in the manner described in such Prospectus or any
amendment or supplement thereto in accordance with applicable law;
(d) use their reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or blue sky laws
of such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC; cooperate
with the Holders in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.; and do any and all other acts
and things that may be reasonably necessary or advisable to enable each Holder
to complete the disposition in each such jurisdiction of the Registrable
Securities owned by such Holder; provided that neither the Company nor any
Guarantor shall be required to (i) qualify as a foreign corporation or other
entity or as a dealer in securities in any such jurisdiction where it would not
otherwise be required to so qualify, (ii) file any general consent to service
of process in any such jurisdiction or (iii) subject itself to taxation in any
such jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, either the Company or
any Guarantor shall notify each Holder of Registrable Securities, counsel for
such Holders and counsel for the Initial Purchasers promptly and, if the
Company or any Guarantor is requested by any such Holder or counsel, confirm
such advice in writing (i) when a Registration Statement has become effective
and when any post-effective amendment thereto has been filed and becomes
effective, (ii) of any request by the SEC or any state securities authority for
amendments and supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) if, between the effective
date of a Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the Company
or any Guarantor contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to an offering of such
Registrable Securities cease to
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be true and correct in all material respects or if the Company or any Guarantor
receives any notification with respect to the suspension of the qualification
of the Registrable Securities for sale in any jurisdiction or the initiation of
any proceeding for such purpose, (v) of the happening of any event during the
period a Shelf Registration Statement is effective that makes any statement
made in such Registration Statement or the related Prospectus untrue in any
material respect or that requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements therein
not misleading and (vi) of any determination by the Company or any Guarantor
that a post-effective amendment to a Registration Statement would be
appropriate;
(f) use their reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at the
earliest possible moment and provide prompt notice to each Holder of the
withdrawal of any such order;
(g) in the case of a Shelf Registration, either the Company or
any Guarantor shall furnish to each Holder of Registrable Securities included
in the Shelf Registration Statement, without charge, at least one conformed
copy of each Registration Statement and any post-effective amendment thereto
(without any documents incorporated therein by reference or exhibits thereto,
unless requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends and enable such Registrable Securities to
be issued in such denominations and registered in such names (consistent with
the provisions of the Indenture) as the selling Holders may reasonably request
at least one Business Day prior to the closing of any sale of Registrable
Securities;
(i) in the case of a Shelf Registration, upon the occurrence of
any event contemplated by Section 3(e)(v) hereof, use their reasonable best
efforts to prepare and file with the SEC a supplement or post-effective
amendment to a Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to purchasers of the Registrable Securities, such
Prospectus will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and the Company
or any Guarantor shall notify the Holders of Registrable Securities to suspend
use of the Prospectus as promptly as practicable after the occurrence of such
an event, and such Holders hereby agree to suspend use of the Prospectus until
the Company and the Guarantors have amended or supplemented the Prospectus to
correct such misstatement or omission;
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(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or of any document that is to be
incorporated by reference into a Registration Statement or a Prospectus after
initial filing of a Registration Statement, provide copies of such document to
the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, to the Holders of Registrable Securities and their
counsel) and make such of the representatives of the Company and the Guarantors
as shall be reasonably requested by the Initial Purchasers or their counsel
(and, in the case of a Shelf Registration Statement, the Holders of Registrable
Securities or their counsel) available for discussion of such document; and the
Company and the Guarantors shall not, at any time after initial filing of a
Registration Statement, file any Prospectus, any amendment of or supplement to
a Registration Statement or a Prospectus, or any document that is to be
incorporated by reference into a Registration Statement or a Prospectus, of
which the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, the Holders of Registrable Securities and their
counsel) shall not have previously been advised and furnished a copy or to
which the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Holders or their counsel) shall reasonably object
on a timely basis;
(k) obtain a CUSIP number for all Exchange Securities or
Registrable Securities, as the case may be, not later than the effective date
of a Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture
Act in connection with the registration of the Exchange Securities or
Registrable Securities, as the case may be; cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the Trust
Indenture Act; and execute, and use their reasonable best efforts to cause the
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 the
Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Registrable Securities
included in the Shelf Registration Statement (an "Inspector"), any Underwriter
participating in any disposition pursuant to such Shelf Registration Statement,
and attorneys and accountants designated by the Holders, at reasonable business
hours and in a reasonable manner, all pertinent financial and other records,
documents and properties of the Company and the Guarantors, and cause the
respective officers, directors and employees of the Company and the Guarantors
to supply all information reasonably requested by any such Inspector,
Underwriter, attorney or accountant in connection with a Shelf Registration
Statement; provided that if any such information is identified by the Company
or any Guarantor as being confidential or proprietary, each Person receiving
such
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information shall take such actions as are reasonably necessary to protect the
confidentiality of such information to the extent such action is otherwise not
inconsistent with, an impairment of or in derogation of the rights and
interests of any Inspector, Holder or Underwriter);
(n) in the case of a Shelf Registration, use their reasonable
best efforts to cause all Registrable Securities to be listed on any securities
exchange or any automated quotation system on which similar securities issued
or guaranteed by the Company or any Guarantor are then listed if requested by
the Majority Holders, to the extent such Registrable Securities satisfy
applicable listing requirements;
(o) if reasonably requested by any Holder of Registrable
Securities covered by a Registration Statement, promptly incorporate in a
Prospectus supplement or post-effective amendment such information with respect
to such Holder as such Holder reasonably requests to be included therein and
make all required filings of such Prospectus supplement or such post-effective
amendment promptly after the Company has received notification of the matters
to be incorporated in such filing; and
(p) in the case of a Shelf Registration, enter into such
customary agreements and take all such other actions in connection therewith
(including those requested by the Holders of a majority in principal amount of
the Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities including, but not limited to, an
Underwritten Offering and in such connection, (i) to the extent possible, make
such representations and warranties to the Holders and any Underwriters of such
Registrable Securities with respect to the business of the Company and its
subsidiaries, the Registration Statement, Prospectus and documents incorporated
by reference or deemed incorporated by reference, if any, 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 requested, (ii) obtain
opinions of counsel to the Company and the Guarantors (which counsel and
opinions, in form, scope and substance, shall be reasonably satisfactory to the
Holders and such Underwriters and their respective counsel) addressed to each
selling Holder and Underwriter of Registrable Securities, covering the matters
customarily covered in opinions requested in underwritten offerings, (iii)
obtain "comfort" letters from the independent certified public accountants of
the Company and the Guarantors (and, if necessary, any other certified public
accountant of any subsidiary of the Company or any Guarantor, or of any
business acquired by the Company or any Guarantor for which financial
statements and financial data are or are required to be included in the
Registration Statement) addressed to each selling Holder and Underwriter of
Registrable Securities, such letters to be in customary form and covering
matters of the type customarily covered in "comfort" letters in connection with
underwritten offerings and (iv) deliver such documents and certificates as may
be reasonably requested by the Holders of a majority in principal amount of the
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Registrable Securities being sold or the Underwriters, and which are
customarily delivered in underwritten offerings, to evidence the continued
validity of the representations and warranties of the Company and the
Guarantors made pursuant to clause (i) above and to evidence compliance with
any customary conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company may require
each Holder of Registrable Securities to furnish to the Company such
information regarding such Holder and the proposed disposition by such Holder
of such Registrable Securities as the Company and the Guarantors may from time
to time reasonably request in writing. The Company and the Guarantors may
exclude from such registration, the Registrable Securities of any such Holder
that fails to furnish such information within a reasonable time after receiving
such request. Each Holder as to which any Shelf Registration is being effected
agrees to furnish promptly to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such Holder not materially misleading.
In the case of a Shelf Registration Statement, each Holder of
Registrable Securities agrees that, upon receipt of any notice from the Company
and the Guarantors of the happening of any event of the kind described in
Section 3(e)(iii) or 3(e)(v) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to a Registration Statement
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 3(i) hereof and, if so directed by the
Company and the Guarantors, such Holder will deliver to the Company and the
Guarantors all copies in its possession, other than permanent file copies then
in such Holder's possession, of the Prospectus covering such Registrable
Securities that is current at the time of receipt of such notice.
If the Company and the Guarantors shall give any such notice to
suspend the disposition of Registrable Securities pursuant to a Registration
Statement, the Company and the Guarantors shall extend the period during which
the Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including the date
of the giving of such notice to and including the date when the Holders shall
have received copies of the supplemented or amended Prospectus necessary to
resume such dispositions. The Company and the Guarantors may give any such
notice only twice during any 365-day period and any such suspensions shall not
exceed 45 days for each suspension and there shall not be more than two
suspensions in effect during any 365-day period.
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "Underwriters") that will
administer the offering will be selected by the Majority Holders of the
Registrable
13
Securities included in such offering, which underwriters shall be reasonably
acceptable to the Company. The Company and the Guarantors hereby agree that
each of the Initial Purchasers would be acceptable for purposes of the
preceding sentence.
4. Participation of Broker-Dealers in Exchange Offer. (a) The
Staff of the SEC has taken the position that any broker-dealer that receives
Exchange Securities for its own account in the Exchange Offer in exchange for
Securities that were acquired by such broker-dealer as a result of
market-making or other trading activities (a "Participating Broker-Dealer") may
be deemed to be an "underwriter" within the meaning of the Securities Act and
must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Securities.
The Company and the Guarantors understand that it is the Staff's
position that if the Prospectus contained in the Exchange Offer Registration
Statement includes a plan of distribution containing a statement to the above
effect and the means by which Participating Broker-Dealers may resell the
Exchange Securities, without naming the Participating Broker-Dealers or
specifying the amount of Exchange Securities owned by them, such Prospectus may
be delivered by Participating Broker-Dealers to satisfy their prospectus
delivery obligation under the Securities Act in connection with resales of
Exchange Securities for their own accounts, so long as the Prospectus otherwise
meets the requirements of the Securities Act.
(b) In light of the above, and notwithstanding the other
provisions of this Agreement, the Company and the Guarantors agree to amend or
supplement the Prospectus contained in the Exchange Offer Registration
Statement, as would otherwise be contemplated by Section 3(i), for a period of
up to 180 days after the last Exchange Date (as such period may be extended
pursuant to the penultimate paragraph of Section 3 of this Agreement), if
requested by the Initial Purchasers or by one or more Participating
Broker-Dealers, in order to expedite or facilitate the disposition of any
Exchange Securities by Participating Broker-Dealers consistent with the
positions of the Staff recited in Section 4(a) above. The Company and the
Guarantors further agree that Participating Broker-Dealers shall be authorized
to deliver such Prospectus during such period in connection with the resales
contemplated by this Section 4.
(c) The Initial Purchasers shall have no liability to the
Company, any Guarantor or any Holder with respect to any request that they may
make pursuant to Section 4(b) above.
5. Indemnification and Contribution. (a) The Company and each
Guarantor, jointly and severally, agree to indemnify and hold harmless each
Initial Purchaser and each Holder, their respective affiliates and each Person,
if any, who controls any Initial Purchaser or any Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
14
against any and all losses, claims, damages and liabilities (including, without
limitation, reasonable legal fees and other expenses incurred in connection
with any suit, action or proceeding or any claim asserted), joint or several,
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or any Prospectus, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
(i) insofar as such losses, claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to any Initial
Purchaser or any Holder furnished to the Company or any Guarantor in writing
through ▇.▇. ▇▇▇▇▇▇ Securities Inc. or any selling Holder expressly for use
therein and (ii) with respect to any untrue statement or omission or alleged
untrue statement or omission made in any preliminary prospectus relating to a
Shelf Registration Statement, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Holder or Participating
Broker-Dealer from whom the person asserting any such losses, claims, damages
or liabilities purchased the Securities concerned, to the extent that a
prospectus relating to such Securities was required to be delivered by such
Holder or Participating Broker-Dealer under the Securities Act in connection
with such purchase and any such loss, claim, damage or liability of such Holder
or Participating Broker-Dealer results from the fact that there was not sent or
given to such person, at or prior to the written confirmation of the sale of
such Securities to such person, a copy of the final prospectus if the Company
had previously furnished copies thereof to such Holder or Participating
Broker-Dealer in a timely manner. In connection with any Underwritten Offering
permitted by Section 3, the Company and the Guarantors will also indemnify the
Underwriters, if any, selling brokers, dealers and similar securities industry
professionals participating in the distribution, their respective affiliates
and each Person who controls such Persons (within the meaning of the Securities
Act and the Exchange Act) to the same extent as provided above with respect to
the indemnification of the Holders, if requested in connection with any
Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Guarantors, the Initial Purchasers and the
other selling Holders, their respective affiliates, the directors of the
Company and the Guarantors, each officer of the Company and the Guarantors who
signed the Registration Statement and each Person, if any, who controls the
Company, the Guarantors, any Initial Purchaser and any other selling Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the indemnity set forth in paragraph (a)
above, but only with respect to any losses, claims, damages or liabilities
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information relating
to such Holder furnished to the Company in writing by such Holder expressly for
use in any Registration Statement and any Prospectus.
15
(c) If any suit, action, proceeding (including any governmental
or regulatory investigation), claim or demand shall be brought or asserted
against any Person in respect of which indemnification may be sought pursuant
to either paragraph (a) or (b) above, such Person (the "Indemnified Person")
shall promptly notify the Person against whom such indemnification may be
sought (the "Indemnifying Person") in writing; provided that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it
may have under this Section 5 except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such
failure; and provided, further, that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have to an
Indemnified Person otherwise than under this Section 5. If any such proceeding
shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others entitled to indemnification pursuant to this
Section 5 that the Indemnifying Person may designate in such proceeding and
shall pay the reasonable fees and expenses of such counsel related to such
proceeding. In any such proceeding, any Indemnified Person shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such Indemnified Person unless (i) the Indemnifying Person
and the Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to
it that are different from or in addition to those available to the
Indemnifying Person; or (iv) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It is understood and agreed that the Indemnifying Person shall not, in
connection with any proceeding or related proceeding in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm (x)
for any Initial Purchaser, its affiliates and any control Persons of such
Initial Purchaser shall be designated in writing by ▇.▇. ▇▇▇▇▇▇ Securities
Inc., (y) for any Holder, its affiliates and any control Persons of such Holder
shall be designated in writing by the Majority Holders and (z) in all other
cases shall be designated in writing by the Company. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested that an Indemnifying Person
reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the
16
Indemnifying Person shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into
more than 30 days after receipt by the Indemnifying Person of such request and
(ii) the Indemnifying Person shall not have reimbursed the Indemnified Person
in accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party and
indemnification could have been sought hereunder by such Indemnified Person,
unless such settlement (A) includes an unconditional release of such
Indemnified Person in form and substance satisfactory to such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding and (B) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) If the indemnification provided for in paragraphs (a) and (b)
above is unavailable to an Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable
by such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantors from the offering of the
Securities and the Exchange Securities, on the one hand, and by the Holders
from receiving Securities or Exchange Securities registered under the
Securities Act, on the other hand, or (ii) if the allocation provided by clause
(i) is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company and the Guarantors on the one hand and the
Holders on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Company and the
Guarantors on the one hand and the Holders on the other 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 and the Guarantors
or by the Holders and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Company, the Guarantors and the Holders agree that it
would not be just and equitable if contribution pursuant to this Section 5 were
determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses
17
incurred by such Indemnified Person in connection with any such action or
claim. Notwithstanding the provisions of this Section 5, in no event shall a
Holder be required to contribute any amount in excess of the amount by which
the total price at which the Securities or Exchange Securities sold by such
Holder exceeds the amount of any damages that such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(f) The remedies provided for in this Section 5 are not exclusive
and shall not limit any rights or remedies that may otherwise be available to
any Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of the Initial Purchasers or any Holder, their respective affiliates or any
Person controlling any Initial Purchaser or any Holder, or by or on behalf of
the Company or the Guarantors, their respective affiliates or the officers or
directors of or any Person controlling the Company or the Guarantors, (iii)
acceptance of any of the Exchange Securities and (iv) any sale of Registrable
Securities pursuant to a Shelf Registration Statement.
6. General.
(a) No Inconsistent Agreements. The Company and the Guarantors
represent, warrant and agree that (i) the rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of any other outstanding securities issued or
guaranteed by the Company or any Guarantor under any other agreement and (ii)
neither the Company nor any Guarantor has entered into, or on or after the date
of this Agreement will enter into, any agreement that is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or consent; provided that no amendment, modification, supplement, waiver
or consent to any departure from the provisions of Section 5 hereof shall be
effective as against any Holder of Registrable Securities unless consented to
in writing by such Holder.
18
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder
to the Company by means of a notice given in accordance with the provisions of
this Section 6(c), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; and (ii) if to the
Company and the Guarantors, initially at the Company's address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 6(c). All such notices
and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and on the next Business
Day if timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Registrable Securities
in any manner, whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all the terms of this Agreement, and by
taking and holding such Registrable Securities such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof. The Initial Purchasers (in their capacity as
Initial Purchasers) shall have no liability or obligation to the Company or the
Guarantors with respect to any failure by a Holder to comply with, or any
breach by any Holder of, any of the obligations of such Holder under this
Agreement.
(e) Purchases and Sales of Securities. The Company and the
Guarantors shall not, and shall use their reasonable best efforts to cause
their affiliates (as defined in Rule 405 under the Securities Act) not to,
purchase and then resell or otherwise transfer any Registrable Securities.
(f) Third Party Beneficiaries. Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights of
other Holders hereunder.
19
(g) 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.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(j) Miscellaneous. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof and supersedes all
oral statements and prior writings with respect thereto. This Agreement may not
be amended or modified except by a writing executed by each of the parties
hereto. Section headings herein are for convenience only and are not a part of
this Agreement. If any term, provision, covenant or restriction contained in
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable or against public policy, the remainder of the terms,
provisions, covenants and restrictions contained herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated. The
Company, the Guarantors and the Initial Purchasers shall endeavor in good faith
negotiations to replace the invalid, void or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to
that of the invalid, void or unenforceable provisions.
[Signatures on following page]
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
▇▇▇▇▇▇▇ CORPORATION
By:
------------------------------------
Name:
Title:
Cross Creek Holdings, Inc.
By
------------------------------------
Title:
Cross Creek Apparel, LLC
By
------------------------------------
Title:
DeSoto ▇▇▇▇▇, Inc.
By
------------------------------------
Title:
Jerzees Apparel, LLC
By
------------------------------------
Title:
▇▇
▇▇▇▇▇ ▇▇▇ Apparel Company
By
------------------------------------
Title:
RINTEL Properties, Inc.
By
------------------------------------
Title:
▇▇▇▇▇▇▇ Co-Op, LLC
By
------------------------------------
Title:
▇▇▇▇▇▇▇ Apparel, LLC
By
------------------------------------
Title:
▇▇▇▇▇▇▇ Asset Management, Inc.
By
------------------------------------
Title:
▇▇▇▇▇▇▇ ATHLETIC, INC.
By
------------------------------------
Title:
22
▇▇▇▇▇▇▇ ATHLETIC WEST, INC.
By
------------------------------------
Title:
▇▇▇▇▇▇▇ Financial Services, Inc.
By
------------------------------------
Title:
▇▇▇▇▇▇▇ Yarn LLC
By
------------------------------------
Title:
Confirmed and accepted as of the date first above written:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
For itself and on behalf of the
several Initial Purchasers
By
---------------------------------
Authorized Signatory
23
Schedule 1
Guarantors
Cross Creek Holdings, Inc.
Cross Creek Apparel, LLC
DeSoto ▇▇▇▇▇, Inc.
Jerzees Apparel, LLC
Mossy Oak Apparel Company
RINTEL Properties, Inc.
▇▇▇▇▇▇▇ Co-Op, LLC
▇▇▇▇▇▇▇ Apparel, LLC
▇▇▇▇▇▇▇ Asset Management, Inc.
▇▇▇▇▇▇▇ Athletic, Inc.
▇▇▇▇▇▇▇ Athletic West, Inc.
▇▇▇▇▇▇▇ Financial Services, Inc.
▇▇▇▇▇▇▇ Yarn LLC
24
