EXHIBIT 10.3
STONERIDGE, INC.
11 1/2 Senior Notes due 2012
REGISTRATION RIGHTS AGREEMENT
New York, New York
April 25, 2002
Deutsche Bank Securities Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
NatCity Investments, Inc.
As Representatives of the several Initial Purchasers
named in Schedule I hereto
c/o Deutsche Bank Securities Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Stoneridge, Inc., a corporation organized under the laws of Ohio
(the "Company"), proposes to issue and sell to the several initial purchasers
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named in Schedule I hereto (the "Initial Purchasers") the Company's 11 1/2
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Senior Notes due 2012 (the "Securities"), which are unconditionally guaranteed
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(the "Guarantees") by the guarantors named in Schedule II hereto (the
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"Guarantors" and, together with the Company, the "Issuers") as provided in the
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Indenture (as defined below), upon the terms and subject to the conditions set
forth in a purchase agreement of even date herewith (the "Purchase Agreement")
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relating to the initial placement of the Securities (the "Initial Placement").
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To induce the Initial Purchasers to enter into the Purchase Agreement and to
satisfy a condition of your obligations thereunder, the Issuers agree with you
for your benefit and the benefit of the holders from time to time of Securities
and Exchange Securities (as defined below) (including the Initial Purchasers)
(each a "Holder" and, together, the "Holders"), as follows:
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1. Definitions. Capitalized terms used herein without
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definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
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"Act" shall mean the Securities Act of 1933, as amended, and the
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rules and regulations of the Commission promulgated thereunder.
"Additional Interest" shall have the meaning set forth in Section
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8(a) hereof.
"Affiliate" of any specified Person shall mean any other Person
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that, directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified Person. For purposes of this definition,
control of a Person shall mean the power, direct or indirect, to direct or cause
the direction of the management and policies of such Person whether by contract
or otherwise; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as
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such under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday
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or a legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" shall mean the one-year
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period following the consummation of the Registered Exchange Offer, exclusive of
any period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a registration
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statement of the Issuers on an appropriate form under the Act with respect to
the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" shall mean debt securities of the Company
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guaranteed by the Guarantors, identical in all material respects to the
Securities (except that the additional interest provisions and the transfer
restrictions shall be modified or eliminated, as appropriate) and to be issued
under the Indenture. Unless the context otherwise requires, any reference to the
"Exchange Securities" shall include a reference to the related guarantees.
"Exchanging Dealer" shall mean any Holder (which may include any
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Initial Purchaser) that is a Broker-Dealer and elects to exchange any Securities
that it acquired for its
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own account as a result of market-making activities or other trading activities
(but not directly from any Issuer or any Affiliate of any Issuer) for Exchange
Securities.
"Event Date" shall have the meaning set forth in Section 8(b)
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hereof.
"Final Memorandum" shall have the meaning set forth in the
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Purchase Agreement.
"Guarantees" shall have the meaning set forth in the preamble
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hereto.
"Guarantors" shall have the meaning set forth in the preamble
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hereto.
"Holder" shall have the meaning set forth in the preamble hereto.
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"Indenture" shall mean the Indenture relating to the Securities,
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to be dated as of the date of original issuance of the Securities, among the
Issuers and Fifth Third Bank, as trustee, as the same may be amended from time
to time in accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the
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preamble hereto.
"Initial Purchaser" shall have the meaning set forth in the
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preamble hereto.
"Issuers" shall have the meaning set forth in the preamble
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hereto.
"Losses" shall have the meaning set forth in Section 6(d) hereof.
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"Majority Holders" shall mean the Holders of a majority of the
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aggregate principal amount of Securities and Exchange Securities registered
under a Registration Statement.
"Managing Underwriters" shall mean the investment banker or
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investment bankers and manager or managers that shall administer an underwritten
offering.
"Prospectus" shall mean the prospectus included in any
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Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities or the Exchange Securities
covered by such Registration Statement, and all amendments and supplements
thereto and all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
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preamble hereto.
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"Registered Exchange Offer" shall mean the proposed offer of the
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Issuers to issue and deliver to the Holders of the Securities that are not
prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the Securities, a like aggregate principal amount of the
Exchange Securities.
"Registration Default" shall have the meaning set forth in
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Section 8(a) hereof.
"Registration Statement" shall mean any Exchange Offer
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Registration Statement or Shelf Registration Statement that covers any of the
Securities or the Exchange Securities pursuant to the provisions of this
Agreement, any amendments and supplements to such registration statement,
including post-effective amendments (in each case including the Prospectus
contained therein), all exhibits thereto and all material incorporated by
reference therein.
"Securities" shall have the meaning set forth in the preamble
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hereto. Unless the context otherwise requires, any reference to the "Securities"
shall include a reference to the related Guarantees.
"Shelf Registration" shall mean a registration effected pursuant
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to Section 3 hereof.
"Shelf Registration Period" shall have the meaning set forth in
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Section 3(c) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
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statement of the Issuers pursuant to the provisions of Section 3 hereof which
covers some or all of the Securities or Exchange Securities, as applicable, on
an appropriate form under Rule 415 under the Act, or any similar rule that may
be adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Transfer Restricted Securities" shall mean each of the
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Securities upon its original issuance and at all times subsequent thereto and
each of the Exchange Securities as to which Section 3(a)(iv)(B) or 3(a)(v)
hereof is applicable upon original issuance and at all times subsequent thereto,
until, in each case, the earliest to occur of (i) a Registration Statement
(other than, with respect to any Exchange Note as to which Section 3(a)(iv)(B)
or 3(a)(v) hereof is applicable, the Exchange Offer Registration Statement)
covering such Security or Exchange Security, as the case may be, has been
declared effective by the Commission and such Security or Exchange Security, as
the case may be, has been disposed of in accordance with such effective
Registration Statement, (ii) such Security has been exchanged pursuant to the
Registered Exchange Offer for an Exchange Security or Exchange Securities that
may be
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resold without restriction under federal and state securities laws, (iii)
such Security or Exchange Security, as the case may be, ceases to be outstanding
for purposes of the Indenture or (iv) such Security or Exchange Security, as the
case may be, may be resold without restriction pursuant to Rule 144(k) (as
amended or replaced) under the Act.
"Trustee" shall mean the trustee with respect to the Securities
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under the Indenture.
"Underwriter" shall mean any underwriter of Securities or
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Exchange Securities in connection with an offering thereof under a Shelf
Registration Statement.
2. Registered Exchange Offer. (a) The Issuers shall prepare
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and, not later than 60 days following the date of the original issuance of the
Securities (or if such 60th day is not a Business Day, the next succeeding
Business Day), shall file with the Commission the Exchange Offer Registration
Statement with respect to the Registered Exchange Offer. The Issuers shall use
their respective reasonable best efforts to cause the Exchange Offer
Registration Statement to become effective under the Act within 150 days of the
date of the original issuance of the Securities (or if such 150th day is not a
Business Day, the next succeeding Business Day).
(b) As promptly as practicable following the effectiveness of
the Exchange Offer Registration Statement, the Issuers shall commence the
Registered Exchange Offer and shall use their respective reasonable best efforts
to issue the Exchange Securities within 180 days of the date of original
issuance of the Securities (or if such 180th day is not a Business Day, the next
succeeding Business Day), it being the objective of such Registered Exchange
Offer to enable each Holder electing to exchange Securities for Exchange
Securities (assuming that such Holder is not an Affiliate of any Issuer,
acquires the Exchange Securities in the ordinary course of such Holder's
business, has no arrangements with any Person to participate in the distribution
of the Exchange Securities and is not prohibited by any law or policy of the
Commission from participating in the Registered Exchange Offer) to trade such
Exchange Securities from and after their receipt without any limitations or
restrictions under the Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the United
States.
(c) In connection with the Registered Exchange Offer, the
Issuers shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
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(ii) keep the Registered Exchange Offer open for not less
than 20 Business Days and not more than 30 Business Days after the date
notice thereof is mailed to the Holders (or, in each case, longer if
required by applicable law);
(iii) use their respective reasonable best efforts to keep
the Exchange Offer Registration Statement continuously effective under
the Act, supplemented and amended as required under the Act, to ensure
that it is available for sales of Exchange Securities by Exchanging
Dealers during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of Manhattan
in New York City, which may be the Trustee or an Affiliate of the
Trustee;
(v) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York time, on the last
Business Day on which the Registered Exchange Offer is open;
(vi) if requested by the Commission, prior to effectiveness
of the Exchange Offer Registration Statement, provide a supplemental
letter to the Commission (A) stating that the Issuers are conducting
the Registered Exchange Offer in reliance on the position of the
Commission in Exxon Capital Holdings Corporation (pub. avail. May 13,
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1988) and Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991); and
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(B) including a representation that the Issuers have not entered into
any arrangement or understanding with any Person to distribute the
Exchange Securities to be received in the Registered Exchange Offer and
that, to the best of the Issuers' information and belief, each Holder
participating in the Registered Exchange Offer is acquiring the
Exchange Securities in the ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the Exchange Securities; and
(vii) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Issuers shall:
(i) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance
with Section 4(s) all Securities so accepted for exchange; and
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(iii) cause the Trustee promptly to authenticate and
deliver to each Holder of Securities a principal amount of Exchange
Securities equal to the principal amount of the Securities of such
Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Registered Exchange Offer to
participate in a distribution of the Exchange Securities (x) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission in Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5,
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1991) and Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as
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interpreted in the Commission's letter to Shearman & Sterling dated July 2, 1993
and similar no-action letters; and (y) must comply with the registration and
prospectus delivery requirements of the Act in connection with any secondary
resale transaction which must be covered by an effective registration statement
containing the selling security holder information required by Item 507 or 508,
as applicable, of Regulation S-K under the Act if the resales are of Exchange
Securities obtained by such Holder in exchange for Securities acquired by such
Holder directly from any Issuer or one of its Affiliates. Accordingly, each
Holder participating in the Registered Exchange Offer shall be required to
represent to the Issuers that, at the time of the consummation of the Registered
Exchange Offer:
(i) any Exchange Securities received by such Holder will
be acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding
with any Person to participate in the distribution of the Securities or
the Exchange Securities within the meaning of the Act; and
(iii) such Holder is not an Affiliate of any Issuer.
(f) If any Initial Purchaser determines that it is not eligible
to participate in the Registered Exchange Offer with respect to the exchange of
Securities constituting any portion of an unsold allotment, at the request of
such Initial Purchaser, the Issuers shall issue and deliver to such Initial
Purchaser or the Person purchasing Exchange Securities registered under a Shelf
Registration Statement as contemplated by Section 3 hereof from such Initial
Purchaser, in exchange for such Securities, a like principal amount of Exchange
Securities. The Issuers shall use their respective reasonable best efforts to
cause the CUSIP Service Bureau to issue the same CUSIP number for such Exchange
Securities as for Exchange Securities issued pursuant to the Registered Exchange
Offer.
3. Shelf Registration. (a) If (i) due to any change in law or
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applicable interpretations thereof by the Commission's staff, the Issuers
determine upon advice of their outside counsel that they are not permitted to
effect the Registered Exchange Offer as contemplated by Section 2 hereof; (ii)
for any other reason the Registered Exchange Offer is not
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consummated within 180 days of the date hereof; (iii) any Initial Purchaser so
requests with respect to Securities that are not eligible to be exchanged for
freely tradeable Exchange Securities in the Registered Exchange Offer and that
are held by it following consummation of the Registered Exchange Offer; (iv) any
Holder notifies the Issuers before the 30th day following consummation of the
Registered Exchange Offer that (A) it is not eligible to participate in the
Registered Exchange Offer or (B) it may not resell the Exchange Notes acquired
by it in the Registered 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; or (v) in the case
of any Initial Purchaser that participates in the Registered Exchange Offer or
acquires Exchange Securities pursuant to Section 2(f) hereof, such Initial
Purchaser does not receive freely tradeable Exchange Securities in exchange for
Securities constituting any portion of an unsold allotment (it being understood
that (x) the requirement that an Initial Purchaser deliver a Prospectus
containing the information required by Item 507 or 508 of Regulation S-K under
the Act in connection with sales of Exchange Securities acquired in exchange for
such Securities shall result in such Exchange Securities being not "freely
tradeable"; and (y) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of Exchange Securities acquired in the
Registered Exchange Offer in exchange for Securities acquired as a result of
market-making activities or other trading activities shall not result in such
Exchange Securities being not "freely tradeable"), the Issuers shall effect a
Shelf Registration Statement in accordance with this Section 3.
(b) The Issuers shall as promptly as practicable (but in no
event more than 60 days after so required or requested pursuant to this Section
3) file with the Commission, and thereafter shall use their respective
reasonable best efforts to cause to be declared effective under the Act within
150 days after so required or requested to so file pursuant to this Section 3, a
Shelf Registration Statement relating to the offer and sale of the Securities or
the Exchange Securities, as applicable, by the Holders thereof from time to time
in accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement; provided, however, that no Holder
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(other than an Initial Purchaser) 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; and provided, further, that with respect to Exchange Securities
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received by an Initial Purchaser in exchange for Securities constituting any
portion of an unsold allotment, the Issuers may, if permitted by current
interpretations by the Commission's staff, file a post-effective amendment to
the Exchange Offer Registration Statement containing the information required by
Item 507 or 508 of Regulation S-K, as applicable, in satisfaction of their
obligations under this subsection with respect thereto, and any such Exchange
Offer Registration Statement, as so amended, shall be referred to herein as, and
governed by the provisions herein applicable to, a Shelf Registration Statement.
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(c) The Issuers shall use their respective reasonable best
efforts to keep the Shelf Registration Statement continuously effective,
supplemented and amended as required by the Act, in order to permit the
Prospectus forming part thereof to be usable by Holders for a period of two
years from the date the Shelf Registration Statement is declared effective by
the Commission or such shorter period that will terminate when all the
Securities or Exchange Securities, as applicable, covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement (in any such case, such period being called the "Shelf Registration
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Period"). The Issuers shall be deemed not to have used their respective
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reasonable best efforts to keep the Shelf Registration Statement effective
during the requisite period if any of them voluntarily takes any action that
would result in Holders of Securities or Exchange Securities covered thereby not
being able to offer and sell such Securities or Exchange Securities during that
period, unless (A) such action is required by applicable law; or (B) such action
is taken by such Issuer in good faith and for valid business reasons (not
including avoidance of such Issuer's obligations hereunder), including the
acquisition or divestiture of assets, so long as the Issuers promptly thereafter
comply with the requirements of Section 4(k) hereof, if applicable.
(d) The Issuers shall cause the Shelf Registration Statement and
the related Prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement or such amendment or
supplement, (A) to comply in all material respects with the applicable
requirements of the Act and the rules and regulations of the Commission; and (B)
not to contain any untrue statement of a material fact or omit to state 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.
4. Additional Registration Procedures. In connection with any
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Shelf Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Issuers shall:
(i) furnish to you, not less than five Business Days prior
to the filing thereof with the Commission, a copy of the Exchange Offer
Registration Statement or Shelf Registration Statement, as the case may
be, and each amendment thereof and each amendment or supplement, if
any, to the Prospectus included therein (including all documents
incorporated by reference therein after the initial filing), and shall
use their respective reasonable best efforts to reflect in each such
document, when so filed with the Commission, such comments as you
reasonably propose;
(ii) in the case of an Exchange Offer Registration
Statement, include the information set forth in Annex A hereto on the
facing page of the Exchange Offer Registration Statement, in Annex B
hereto in the forepart of the Exchange Offer
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Registration Statement in a section setting forth details of the Exchange
Offer, in Annex C hereto in the underwriting or plan of distribution
section of the Prospectus contained in the Exchange Offer Registration
Statement, and in Annex D hereto in the letter of transmittal delivered
pursuant to the Registered Exchange Offer;
(iii) in the case of an Exchange Offer Registration Statement, if
requested by an Initial Purchaser, include the information required by Item
507 or 508 of Regulation S-K, as applicable, in the Prospectus contained in
the Exchange Offer Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the
names of the Holders that propose to sell Securities or Exchange Securities
pursuant to the Shelf Registration Statement as selling security holders.
(b) The Issuers shall ensure that:
(i) any Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any amendment or supplement thereto
complies in all material respects with the Act and the rules and
regulations thereunder; and
(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(c) The Issuers shall advise you, the Holders of Securities or
Exchange Securities covered by any Shelf Registration Statement and any
Exchanging Dealer under any Exchange Offer Registration Statement that has
provided in writing to the Company a telephone or facsimile number and address
for notices, and, if requested by you or any such Holder or Exchanging Dealer,
shall confirm such advice in writing (which notice pursuant to clauses (ii)-(v)
hereof shall be accompanied by an instruction to suspend the use of the
Prospectus until the Issuers shall have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment thereto has
been filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
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(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by any Issuer of any notification with
respect to the suspension of the qualification of the securities included
therein for sale in any jurisdiction or the initiation of any proceeding
for such purpose; and
(v) of the happening of any event that requires any change in
the Registration Statement or the Prospectus so that, as of such date, the
statements therein are not misleading and do not omit to state a material
fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in the light of the circumstances
under which they were made) not misleading.
(d) The Issuers shall use their respective reasonable best efforts to
obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement or the qualification of the securities included therein
for sale in any jurisdiction at the earliest possible time.
(e) The Issuers shall furnish to each Holder of Securities or
Exchange Securities covered by any Shelf Registration Statement, without charge,
at least one copy of such Shelf Registration Statement and any post-effective
amendment thereto, including all material incorporated therein by reference,
and, if the Holder so requests in writing, all exhibits thereto (including
exhibits incorporated by reference therein).
(f) The Issuers shall, during the Shelf Registration Period, deliver
to each Holder of Securities or Exchange Securities covered by any Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may reasonably
request. The Issuers consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of securities in connection
with the offering and sale of the securities covered by the Prospectus, or any
amendment or supplement thereto, included in the Shelf Registration Statement.
(g) The Issuers shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including all material
incorporated by reference therein, and, if the Exchanging Dealer so requests in
writing, all exhibits thereto (including exhibits incorporated by reference
therein).
(h) The Issuers shall promptly deliver to each Initial Purchaser,
each Exchanging Dealer and each other Person required to deliver a Prospectus
during the Exchange
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Offer Registration Period, without charge, as many copies of the Prospectus
included in such Exchange Offer Registration Statement and any amendment or
supplement thereto as any such Person may reasonably request. The Issuers
consent to the use of the Prospectus or any amendment or supplement thereto by
any Initial Purchaser, any Exchanging Dealer and any such other Person that may
be required to deliver a Prospectus following the Registered Exchange Offer in
connection with the offering and sale of the Exchange Securities covered by the
Prospectus, or any amendment or supplement thereto, included in the Exchange
Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of
Securities or Exchange Securities pursuant to any Registration Statement, the
Issuers shall arrange, if necessary, for the qualification of the Securities or
the Exchange Securities for sale under the laws of such jurisdictions as any
Holder shall reasonably request and will maintain such qualification in effect
so long as required; provided that in no event shall any Issuer be obligated to
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qualify to do business in any jurisdiction where it is not then so qualified or
to take any action that would subject it to service of process in suits, other
than those arising out of the Initial Placement, the Registered Exchange Offer
or any offering pursuant to a Shelf Registration Statement, in any such
jurisdiction where it is not then so subject.
(j) The Issuers shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Exchange Securities
or Securities to be issued or sold pursuant to any Registration Statement free
of any restrictive legends and in such denominations and registered in such
names as Holders may request.
(k) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Issuers shall promptly prepare a post-effective
amendment to the applicable Registration Statement or an amendment or supplement
to the related Prospectus or file any other required document so that, as
thereafter delivered, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. In such circumstances, the period of effectiveness of the
Exchange Offer Registration Statement provided for in Section 2 and the Shelf
Registration Statement provided for in Section 3 shall each be extended by the
number of days from and including the date of the giving of a notice of
suspension pursuant to Section 4(c) to and including the date when the Initial
Purchasers, the Holders and any known Exchanging Dealer shall have received such
amended or supplemented Prospectus pursuant to this Section 4.
(l) Not later than the effective date of any Registration Statement,
the Issuers shall provide a CUSIP number for the Securities or the Exchange
Securities, as the case may be, registered under such Registration Statement and
provide the Trustee with printed certificates for such Securities or Exchange
Securities, in a form eligible for deposit with The Depository Trust Company.
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(m) The Company shall comply with all applicable rules and
regulations of the Commission and shall make generally available to its security
holders as soon as practicable after the effective date of the applicable
Registration Statement an earnings statement satisfying the provisions of
Section 11(a) of the Act.
(n) The Issuers shall cause the Indenture to be qualified under the
Trust Indenture Act in a timely manner.
(o) The Issuers may require each Holder of securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Issuers such
information regarding the Holder and the distribution of such securities as the
Issuers may from time to time reasonably require for inclusion in such
Registration Statement. The Issuers may exclude from such Shelf Registration
Statement the Securities or Exchange Securities of any Holder that unreasonably
fails to furnish such information within a reasonable time after receiving such
request.
(p) In the case of any Shelf Registration Statement, the Issuers
shall enter into such and take all other appropriate actions (including if
requested an underwriting agreement in customary form) in order to expedite or
facilitate the registration or the disposition of the Securities or Exchange
Securities, and in connection therewith, if an underwriting agreement is entered
into, cause the same to contain indemnification provisions and procedures no
less favorable than those set forth in Section 6 (or such other provisions and
procedures acceptable to the Majority Holders and the Managing Underwriters, if
any) with respect to all parties to be indemnified pursuant to Section 6.
(q) In the case of any Shelf Registration Statement, the Issuers
shall:
(i) make reasonably available for inspection by the Holders of
Securities or Exchange Securities to be registered thereunder, any
underwriter participating in any disposition pursuant to such Shelf
Registration Statement, and any attorney, accountant or other agent
retained by the Holders or any such underwriter all relevant financial and
other records, pertinent corporate documents and properties of each Issuer
and its subsidiaries;
(ii) cause the officers, directors and employees of any Issuer to
supply all relevant information reasonably requested by the Holders or any
such underwriter, attorney, accountant or agent in connection with any such
Shelf Registration Statement as is customary for similar due diligence
examinations; provided, however, that any information that is designated in
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writing by any Issuer, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by the Holders or
any such underwriter, attorney, accountant or agent, unless such disclosure
is made in connection with a court proceeding or required by law, or such
information
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becomes available to the public generally or through a third party without
an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Holders of
Securities or Exchange Securities registered thereunder and the
underwriters, if any, in form, substance and scope as are customarily made
by issuers to underwriters in primary underwritten offerings and covering
matters including, but not limited to, those set forth in the Purchase
Agreement;
(iv) obtain opinions of counsel to the Issuers and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters, if any) addressed to
each selling Holder and the underwriters, if any, covering such matters as
are customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such Holders and
underwriters;
(v) obtain "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 Issuer or any
subsidiary of any Issuer or of any business acquired by any Issuer for
which financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each selling Holder
of securities registered thereunder and the underwriters, if any, in
customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with primary underwritten offerings;
and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing Underwriters,
if any, including those to evidence compliance with Section 4(k) and with
any customary conditions contained in the underwriting agreement or other
agreement entered into by the Issuers.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section 4(q)
shall be performed at (A) the effectiveness of such Registration Statement and
each post-effective amendment thereto; and (B) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
(r) In the case of any Exchange Offer Registration Statement, the
Issuers shall:
(i) make reasonably available for inspection by the Initial
Purchasers, and any attorney, accountant or other agent retained by such
Initial Purchasers, all
-15-
relevant financial and other records, pertinent corporate documents and
properties of the Issuers and their respective subsidiaries;
(ii) cause the officers, directors and employees of any Issuer
to supply all relevant information reasonably requested by any Initial
Purchaser or any attorney, accountant or agent retained by the Initial
Purchasers in connection with any such Exchange Offer Registration
Statement as is customary for similar due diligence examinations; provided,
--------
however, that any information that is designated in writing by any Issuer,
-------
in good faith, as confidential at the time of delivery of such information
shall be kept confidential by such Initial Purchaser or any such attorney,
accountant or agent, 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;
(iii) make such representations and warranties to the Initial
Purchasers, in form, substance and scope as are customarily made by issuers
to underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Issuers and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Initial Purchasers and their counsel,
addressed to Initial Purchasers, covering such matters as are customarily
covered in opinions requested in underwritten offerings and such other
matters as may be reasonably requested by the Initial Purchasers or their
counsel;
(v) obtain "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 Issuer or any
subsidiary of any Issuer or of any business acquired by any Issuers for
which financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to such Initial
Purchaser, in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with primary underwritten
offerings, or if requested by the Initial Purchasers or their counsel in
lieu of a "cold comfort" letter, an agreed-upon procedures letter under
Statement on Auditing Standards No. 35, covering matters requested by the
Initial Purchasers or their counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Initial Purchasers or their counsel, including
those to evidence compliance with Section 4(k) and with conditions
customarily contained in underwriting agreements.
-16-
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section 4(r) shall be performed at the close of the Registered Exchange Offer
and the effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(s) If a Registered Exchange Offer is to be consummated, upon delivery
of the Securities by Holders to the Issuers (or to such other Person as directed
by the Issuers) in exchange for the Exchange Securities, the Issuers shall xxxx,
or caused to be marked, on the Securities so exchanged that such Securities are
being canceled in exchange for the Exchange Securities. In no event shall the
Securities be marked as paid or otherwise satisfied.
(t) The Issuers will use their respective reasonable best efforts (i)
if the Securities have been rated prior to the initial sale of such Securities,
to confirm such ratings will apply to the Securities or the Exchange Securities,
as the case may be, covered by a Registration Statement; or (ii) if the
Securities were not previously rated, to cause the Securities or Exchange
Securities covered by a Registration Statement to be rated with at least one
nationally recognized statistical rating agency, if so requested by Majority
Holders with respect to the related Registration Statement or by any Managing
Underwriters.
(u) In the event that any Broker-Dealer shall underwrite any
Securities or Exchange Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution" (within the meaning
of the Conduct Rules of the National Association of Securities Dealers, Inc.)
thereof, whether as a Holder or as an underwriter, a placement or sales agent or
a broker or dealer in respect thereof, or otherwise, assist such Broker-Dealer
in complying with the requirements of such Conduct Rules, including, without
limitation, by:
(i) if such Conduct Rules shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules) to
participate in the preparation of the Registration Statement, to exercise
usual standards of due diligence with respect thereto and, if any portion
of the offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Securities or Exchange Securities;
(ii) indemnifying any such qualified independent underwriter to
the extent of the indemnification of underwriters provided in Section 6
hereof; and
(iii) providing such information to such Broker-Dealer as may be
required in order for such Broker-Dealer to comply with the requirements of
such Rules.
(iv) The Issuers shall use their respective reasonable best
efforts to take all other steps necessary to effect the registration of the
Securities or the Exchange Securities, as the case may be, covered by a
Registration Statement.
-17-
5. Registration Expenses. The Issuers shall bear all expenses incurred
---------------------
in connection with the performance of their obligations under Sections 2, 3 and
4 hereof and, in the event of any Shelf Registration Statement, will reimburse
the Holders for the reasonable fees and disbursements of one firm or counsel
designated by the Majority Holders to act as counsel for the Holders in
connection therewith, and, in the case of any Exchange Offer Registration
Statement, will reimburse the Initial Purchasers for the reasonable fees and
disbursements of counsel acting in connection therewith.
6. Indemnification and Contribution. (a) The Issuers jointly and
--------------------------------
severally agree to indemnify and hold harmless each Holder of Securities or
Exchange Securities, as the case may be, covered by any Registration Statement
(including each Initial Purchaser and, with respect to any Prospectus delivery
as contemplated in Section 4(h) hereof, each Exchanging Dealer), the directors,
officers, employees and agents of each such Holder and each Person who controls
any such Holder within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (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 as
originally filed or in any amendment thereof, or in any preliminary Prospectus
or the Prospectus, or in any amendment thereof or supplement thereto, 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 not misleading, and jointly and severally agree to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Issuers will not
-------- -------
be liable in any case to the extent that any such loss, claim, damage or
liability 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 Issuers by or on
behalf of any such Holder specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Issuers may otherwise
have.
The Issuers also jointly and severally agree to indemnify or
contribute as provided in Section 6(d) to Losses of each underwriter of
Securities or Exchange Securities, as the case may be, registered under a Shelf
Registration Statement, their directors, officers, employees or agents and each
Person who controls such underwriter on substantially the same basis as that of
the indemnification of the Initial Purchasers and the selling Holders provided
in this Section 6(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 4(p)
hereof.
-18-
(b) Each Holder of securities covered by a Registration
Statement (including each Initial Purchaser and, with respect to any Prospectus
delivery as contemplated in Section 4(h) hereof, each Exchanging Dealer)
severally agrees to indemnify and hold harmless the Issuers, each of their
respective directors, each of their respective officers who signs such
Registration Statement, and each Person who controls any Issuer within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Issuers to each such Holder, but only with
reference to written information relating to such Holder furnished to the
Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity; provided, however, that in no
-------- -------
case shall any Initial Purchaser or any subsequent Holder of any Security or
Exchange Security be responsible, in the aggregate, for any amount in excess of
the purchase discount or commission applicable to such Security, or in the case
of an Exchange Security, applicable to the Security that was exchangeable into
such Exchange Security. This indemnity agreement will be in addition to any
liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 or notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses;
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
-------- -------
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action; or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at
-19-
the expense of the indemnifying party. An indemnifying party will not, without
the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall
have an obligation (which such obligation shall be joint and several in the case
of paragraph (a) of this Section 6 and several and not joint in the case of
paragraph (b) of this Section 6) to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively "Losses") to
------
which such indemnified party may be subject in such proportion as is appropriate
to reflect the relative benefits received by such indemnifying party, on the one
hand, and such indemnified party, on the other hand, from the Initial Placement
and the Registration Statement which resulted in such Losses; provided, however,
-------- -------
that in no case shall any Initial Purchaser or any subsequent Holder of any
Security or Exchange Security be responsible, in the aggregate, for any amount
in excess of the purchase discount or commission applicable to such Security, or
in the case of an Exchange Security, applicable to the Security that was
exchangeable into such Exchange Security, nor shall any underwriter be
responsible for any amount in excess of the underwriting discount or commission
applicable to the securities purchased by such underwriter under the
Registration Statement which resulted in such Losses. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Issuers shall be deemed to be equal to the sum of (x)
the total net proceeds from the Initial Placement (before deducting expenses)
and (y) the total amount of additional interest which the Issuers were not
required to pay as a result of registering the securities covered by the
Registration Statement which resulted in such Losses. Benefits received by the
Initial Purchasers shall be deemed to be equal to the total purchase discounts
and commissions from the Initial Placement, and benefits received by any other
Holders shall be deemed to be equal to the value of receiving Securities or
Exchange Securities, as applicable, registered under the Act. Benefits received
by any underwriter shall be deemed to be equal to the total underwriting
discounts and commissions, as set forth on the cover page of the Prospectus
forming a part of the Registration Statement which resulted in such Losses.
Relative fault shall be determined by reference to, among other things, whether
any alleged untrue statement or
-20-
omission relates to information provided by the indemnifying party, on the one
hand, or by the indemnified party, on the other hand, the intent of the parties
and their relative knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The parties agree that it would
not be just and equitable if contribution were determined by pro rata allocation
(even if the Holders were treated as one entity for such purpose) or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), 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 this Section 6,
each Person who controls a Holder within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of such Holder shall
have the same rights to contribution as such Holder, and each Person who
controls any Issuer within the meaning of either the Act or the Exchange Act,
each officer of any Issuer who shall have signed the Registration Statement and
each director of any Issuer shall have the same rights to contribution as the
Issuers, subject in each case to the applicable terms and conditions of this
paragraph (d).
(e) The provisions of this Section 6 will remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder
or the Issuers or any of the officers, directors or controlling Persons referred
to in this Section 6, and will survive the sale by a Holder of securities
covered by a Registration Statement.
7. Underwritten Registrations. (a) If any of the Securities
--------------------------
or Exchange Securities, as the case may be, covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the Managing Underwriters
shall be selected by the Majority Holders.
(b) No Person may participate in any underwritten offering
pursuant to any Shelf Registration Statement, unless such Person (i) agrees to
sell such Person's Securities or Exchange Securities, as the case may be, on the
basis reasonably provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
8. Registration Default; Additional Interest. (a) The Issuers
-----------------------------------------
agree that the Holders will suffer damages if the Issuers fail to fulfill their
obligations under Section 2 or 3 of this Agreement and that it would not be
feasible to ascertain the extent of any such damages with precision.
Accordingly, the Issuers agree to pay, jointly and severally, as liquidated
damages, additional interest ("Additional Interest") on any Transfer Restricted
-------------------
Securities under the circumstances and to the extent set forth below (each of
which shall be given independent effect):
-21-
(i) if (A) neither the Exchange Offer Registration Statement
nor the Shelf Registration Statement, as applicable, has been filed on
or prior to the filing date applicable thereto or (B) notwithstanding
that the Issuers have consummated or will consummate the Registered
Exchange Offer, the Issuers are required to file a Shelf Registration
and such Shelf Registration is not filed on or prior to the filing date
applicable thereto;
(ii) if (A) neither the Exchange Offer Registration Statement
nor the Shelf Registration Statement, as applicable, is declared
effective by the Commission on or prior to the effectiveness date
applicable thereto or (B) notwithstanding that the Issuers have
consummated or will consummate the Registered Exchange Offer, the
Issuers are required to file a Shelf Registration Statement and such
Shelf Registration is not declared effective by the Commission on or
prior to the effectiveness date applicable thereto;
(iii) if the Issuers have not exchanged Exchange Securities
for all validly tendered Securities in accordance with the terms of the
Registered Exchange Offer on or prior to the 180th day after the date
of original issuance of the Securities; or
(iv) if (A) the Exchange Offer Registration Statement has
been declared effective but ceases to be effective at any time during
the Exchange Offer Registration Period or (B) if applicable, a Shelf
Registration has been declared effective and such Shelf Registration
ceases to be effective at any time during the Shelf Registration Period
(each such event referred to in clauses (i) through (iv) above being a
"Registration Default"), then, commencing on the date of such Registration
--------------------
Default, Additional Interest shall accrue on the principal amount of any
Transfer Restricted Securities at a rate of 0.25% per annum for the first 90
days immediately following the date of such Registration Default and the rate of
such Additional Interest shall increase by an additional 0.25% per annum at the
beginning of each subsequent 90-day period; provided, however, that the rate of
-------- -------
Additional Interest that shall accrue on the Transfer Restricted Securities may
not exceed in the aggregate 1.00% per annum; provided, further, however, that
-------- ------- -------
(1) upon the filing of the Exchange Offer Registration Statement or the Shelf
Registration Statement, as applicable, as required under this Agreement (in the
case of clause (i) above), (2) upon the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as applicable, as
required under this Agreement (in the case of clause (ii) above), (3) upon the
exchange of Exchange Securities for all Securities validly tendered (in the case
of clause (iii) above), or (4) upon the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as applicable, which
had ceased to remain effective (in the case of clause (iv) above), Additional
Interest on the Transfer Restricted Securities in respect of which such events
relate as a result of such clause, as the case may be, shall cease to accrue or
accumulate, as the case may be. If, after the cure
-22-
of all Registration Defaults then in effect, there is a subsequent Registration
Default, the rate of Additional Interest for such subsequent Registration
Default shall initially be 0.25%, regardless of the rate of Additional Interest
in effect with respect to any prior Registration Default at the time of the cure
of such Registration Default.
(b) The Issuers shall notify the Trustee (who shall be acting
under and protected by the terms of the Indenture) within three Business Days
after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Any amounts of
----------
Additional Interest due pursuant to clause (i), (ii), (iii) or (iv) of paragraph
(a) above shall be payable in cash semi-annually on each May 1 and November 1
(to the holders of record on the April 15 and October 15 immediately preceding
such dates), commencing with the first such date occurring after any such
Additional Interest commences to accrue. The amount of Additional Interest will
be determined by multiplying the applicable rate of Additional Interest by the
principal amount of the affected Transfer Restricted Securities, multiplied by a
fraction, the numerator of which is the number of days such rate of Additional
Interest was applicable during such period (determined on the basis of a 360-day
year comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
9. No Inconsistent Agreements. No Issuer has, as of the date
--------------------------
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
10. Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Issuers have obtained the written
consent of the Majority Holders; provided that, with respect to any matter that
--------
directly or indirectly affects the rights of any Initial Purchaser hereunder,
the Issuers shall obtain the written consent of each such Initial Purchaser
against which such amendment, qualification, supplement, waiver or consent is to
be effective. Notwithstanding the foregoing (except the foregoing proviso), a
waiver or consent to departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose Securities or
Exchange Securities, as the case may be, are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by the Majority Holders, determined on the
basis of Securities or Exchange Securities, as the case may be, being sold
rather than registered under such Registration Statement.
11. Notices. All notices and other communications provided for
-------
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail or air courier guaranteeing overnight delivery:
-23-
(a) if to a Holder, at the most current address given by such
holder to the Issuers in accordance with the provisions of this Section 11,
which address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Indenture, with a copy in like
manner to Deutsche Bank Securities Inc.;
(b) if to you, initially at the respective addresses set
forth in the Purchase Agreement; and
(c) if to the Issuers, initially at their address set forth
in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received.
The Initial Purchasers or the Issuers by notice to the other
parties may designate additional or different addresses for subsequent notices
or communications.
12. Successors. This Agreement shall inure to the benefit of
----------
and be binding upon the successors and assigns of each of the parties hereto,
including, without the need for an express assignment or any consent by the
Issuers thereto, subsequent Holders of Securities and Exchange Securities. The
Issuers hereby agree to extend the benefits of this Agreement to any Holder of
Securities or Exchange Securities, and any such Holder may specifically enforce
the provisions of this Agreement as if an original party hereto.
13. Counterparts. This Agreement may be in signed
------------
counterparts, each of which shall an original and all of which together shall
constitute one and the same agreement.
14. Headings. The headings used herein are for convenience
--------
only and shall not affect the construction hereof.
15. Applicable Law. This Agreement shall be governed by and
--------------
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York.
16. Severability. In the event that any one of more of the
------------
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
17. Securities Held by the Issuers, etc. Whenever the consent
-----------------------------------
or approval of Holders of a specified percentage of principal amount of
Securities or Exchange Securities
-24-
is required hereunder, Securities or Exchange Securities, as applicable, held by
any Issuer or its Affiliates (other than subsequent Holders of Securities or
Exchange Securities if such subsequent Holders are deemed to be Affiliates
solely by reason of their holdings of such Securities or Exchange Securities)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
18. Submission to Jurisdiction. By the execution and delivery
--------------------------
of this Agreement, each Issuer submits to the non-exclusive jurisdiction of any
federal or state court in the State of New York in any suit or proceeding
arising out of or relating to this Agreement or brought under federal or state
securities laws.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Issuers and the several Initial Purchasers.
Very truly yours,
Stoneridge, Inc.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and
Chief Financial Officer
Stoneridge Control Devices, Inc.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Treasurer
Stoneridge Electronics, Inc.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
Deutsche Bank Securities Inc.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
X.X. Xxxxxx Securities Inc.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
Xxxxxx Xxxxxxx & Co. Incorporated
By: /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
NatCity Investments, Inc.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
As Representatives of the several Initial
Purchasers named in Schedule I hereto
SCHEDULE I
Initial Purchasers
------------------
Deutsche Bank Securities Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
NatCity Investments, Inc.
Comerica Securities, Inc.
PNC Capital Markets, Inc.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
SCHEDULE II
Guarantors
----------
Stoneridge Control Devices, Inc., a Massachusetts corporation
Stoneridge Electronics, Inc., a Texas corporation
ANNEX A
Each Broker-Dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a Broker-Dealer in connection
with resales of Exchange Securities received in exchange for Securities where
such Securities were acquired by such Broker-Dealer as a result of market-making
activities or other trading activities. The Issuers have agreed that, starting
on the Expiration Date (as defined herein) and ending on the close of business
one year after the Expiration Date, they will make this Prospectus available to
any Broker-Dealer for use in connection with any such resale. See "Plan of
Distribution."
ANNEX B
Each Broker-Dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
ANNEX C
Plan of Distribution
--------------------
Each Broker-Dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Issuers have agreed
that, starting on the Expiration Date and ending on the close of business one
year after the Expiration Date, they will make this Prospectus, as amended or
supplemented, available to any Broker-Dealer for use in connection with any such
resale. In addition, until __________, 20__, all dealers effecting transactions
in the Exchange Securities may be required to deliver a prospectus.
The Issuers will not receive any proceeds from any sale of Exchange
Securities by Brokers-Dealers. Exchange Securities received by Broker-Dealers
for their own account pursuant to the Exchange Offer may be sold from time to
time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such Broker-Dealer and/or the purchasers of any such
Exchange Securities. Any Broker-Dealer that resales Exchange Securities that
were received by it for its own account pursuant to the Exchange Offer and any
broker or dealer that participates in a distribution of such Exchange Securities
may be deemed to be an "underwriter" within the meaning of the Securities Act
and any profit of any such resale of Exchange Securities and any commissions or
concessions received by any such Persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that by
acknowledging that it will deliver and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of one year after the Expiration Date, the Issuers will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any Broker-Dealer that requests such documents
in the Letter of Transmittal. The Issuers have agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
holder of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the holders of the Securities (including any
Broker-Dealers) against certain liabilities, including liabilities under the
Securities Act.
-2-
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
ANNEX D
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name: ______________________________
Address: ______________________________
______________________________
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the Exchange Securities in the ordinary course of its business, it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities and it has no arrangements or understandings with any Person to
participate in a distribution of the Exchange Securities. If the undersigned is
a Broker-Dealer that will receive Exchange Securities for its own account in
exchange for Securities, it represents that the Securities to be exchanged for
Exchange Securities were acquired by it as a result of market-making activities
or other trading activities and acknowledges that it will deliver a prospectus
in connection with any resale of such Exchange Securities; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
