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Exhibit 4.5
XXXXX MATERIAL HANDLING COMPANY
$20,000,000 10-3/4% Senior Notes due 2006
REGISTRATION RIGHTS AGREEMENT
July 17, 1998
XXXXXXXXX & COMPANY, INC.
00000 Xxxxx Xxxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
BEAR, XXXXXXX & CO. INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
XXXXX Material Handling Company, a Delaware corporation (the
"Company"), is issuing and selling to Xxxxxxxxx & Company, Inc. and Bear,
Xxxxxxx & Co. Inc. (collectively, the "Purchasers"), upon the terms set forth in
a purchase agreement, dated as of July 13, 1998 (the "Purchase Agreement"),
$20,000,000 aggregate principal amount of the Company's 10-3/4% Series C Senior
Notes due 2006 (the "Notes"). As an inducement to the Purchasers to enter into
the Purchase Agreement, the Company agrees with the Purchasers, for the benefit
of the holders of the Securities (defined below) (including, without limitation,
the Purchasers), as follows:
1. Definitions
Capitalized terms used herein without definition shall have
their respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
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Advice: See Section 6.
Agreement: This Registration Rights Agreement.
Applicable Period: See Section 2(f).
Business Days: Any day other than (i) Saturday or Sunday, or
(ii) a day on which banking institutions in the State of New York are authorized
or obligated by law, governmental regulation or executive order to be closed.
Closing Date: July [17], 1998.
Effectiveness Date: November 16, 1998.
Effectiveness Period: See Section 3(a).
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2(a).
Exchange Offer Registration Statement: See Section 2(a).
Exchange Securities: 10-3/4% Senior Notes due 2006 of the
Company that are identical in all material respects to the Notes, except for
references to series and restrictive legends.
Filing Date: September 15, 1998.
Guarantors: Blue Giant USA Corporation, Hydroelectric Lift
Trucks, Inc. and any future Guarantors appointed in accordance with the terms of
the Indenture.
Holder: Each registered holder of Registrable Securities.
Indenture: The Indenture, dated the date hereof, between the
Company and United States Trust Company of New York, as trustee, pursuant to
which the Notes are being issued, as amended or supplemented from time to time,
in accordance with the terms thereof.
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Initial Shelf Registration: See Section 3(a).
Losses: See Section 8(a).
Maximum Contribution Amount: See Section 8(d).
NASD: The National Association of Securities Dealers, Inc.
Original Indenture: The Indenture, dated November 27, 0000,
xxxxxxx xxx Xxxxxxx xxx Xxxxxx Xxxxxx Trust Company of New York, as trustee,
pursuant to which the Original Notes were issued, as amended or supplemented
from time to time, in accordance with the terms thereof.
Original Notes: The 10-3/4% Senior Notes due 2006 of the
Company outstanding under the Original Indenture.
Participating Broker-Dealer: See Section 2(f).
Person: An individual, trustee, corporation, partnership,
joint stock company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof, union, business
association, firm or other entity.
Private Exchange: See Section 2(g).
Private Exchange Securities: See Section 2(g).
Prospectus: The prospectus included in any 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 promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Securities covered by
such Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Registration Default: See Section 4(a).
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Registrable Securities: (a) Notes, (b) Private Exchange
Securities and (c) Exchange Securities received by a Holder in the Exchange
Offer that may not be sold without restriction under state and federal
securities laws (other than due solely to the status of such Holder as an
affiliate of the Company within the meaning of the Securities Act), in each case
until (i) a Registration Statement covering such Notes, Private Exchange
Securities or Exchange Securities has been declared effective by the SEC and
such Notes, Private Exchange Securities or Exchange Securities, as the case may
be, have been disposed of in accordance with the effective Registration
Statement, (ii) such Notes have been exchanged pursuant to the Exchange Offer
for Exchange Securities that may be resold without restriction under state or
federal securities laws, or (iii) such Notes, Private Exchange Securities or
Exchange Security, as the case may be, cease to be outstanding for purposes of
the Indenture.
Registration Statement: Any registration statement of the
Company that covers any of the Registrable Securities pursuant to the provisions
of this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Review: See Section 6(a).
Rule 144: Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC.
Rule 144A: Rule 144A under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
Rule 415: Rule 415 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities: The Notes, the Private Exchange Securities and the
Exchange Securities, collectively.
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Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(i).
Shelf Registration: The Initial Shelf Registration and any
Subsequent Shelf Registration.
Special Counsel: Counsel chosen by the Holders of a majority
in aggregate principal amount of Securities.
Subsequent Shelf Registration: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if any, the
trustee under any indenture governing the Exchange Securities or the Private
Exchange Securities.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
Weekly Liquidated Damages Amount: See Section 4(a).
2. Exchange Offer
(a) The Company shall (i) prepare and file with the SEC
promptly after the date hereof, but in no event later than the Filing Date, a
registration statement (the "Exchange Offer Registration Statement") on an
appropriate form under the Securities Act with respect to a proposed offer (the
"Exchange Offer") to the Holders to issue and deliver to such Holders, in
exchange for the Notes, a like aggregate principal amount of Exchange
Securities, (ii) use its best efforts to cause the Exchange Offer Registration
Statement to become effective as promptly as practicable after the filing
thereof, but in no event later than the Effectiveness Date, (iii) keep the
Exchange Offer Registration Statement effective until the consummation of the
Exchange Offer pursuant to its terms, and (iv) unless the Exchange Offer would
not be permitted by a policy of the SEC, commence the
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Exchange Offer and use its best efforts to issue, on or prior to 30 business
days after the date on which the Exchange Offer Registration Statement is
declared effective, Exchange Securities in exchange for all Notes tendered prior
thereto in the Exchange Offer.
The Exchange Offer shall not be subject to any conditions,
other than that (i) the Exchange Offer does not violate applicable law or any
applicable interpretation 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 could reasonably be expected to materially impair the ability of the
Company to proceed with the Exchange Offer, and no material adverse development
shall have occurred in any such existing action or proceeding with respect to
the Company, and (iii) all governmental approvals necessary for the consummation
of the Exchange Offer shall have been obtained.
(b) The Exchange Securities shall be issued under, and
entitled to the benefits of, the Original Indenture or the Indenture (with such
changes to the Indenture that are necessary to comply with any requirements of
the SEC to effect or maintain the qualification thereof under the TIA). If the
Exchange Securities are issued under the Original Indenture, prior to
consummating the Exchange Offer, the Company shall obtain the requisite consents
from the holders of the Original Notes to permit the issuance of the Exchange
Securities in the Exchange Offer. If the Exchange Securities are issued under
the Indenture, the Exchange Offer shall include an offer to the holders of the
Original Notes to issue and deliver to such holders, in exchange for the
Original Notes, a like aggregate principal amount of Exchange Securities.
(c) In connection with the Exchange Offer, the Company 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 that is an exhibit thereto and related
documents;
(ii) keep the Exchange Offer open for not less than
20 Business Days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law);
(iii) utilize the services of a depository for the
Exchange Offer with an address in the Borough of Manhattan, The City of New
York;
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(iv) permit Holders to withdraw tendered Notes at any
time prior to the close of business, New York time, on the last Business Day on
which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with
all laws applicable to the Exchange Offer.
(d) As soon as practicable after the close of the Exchange
Offer, the Company shall:
(i) accept for exchange all Notes validly tendered
and not validly withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all
Notes so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and
deliver to each Holder of Notes, Exchange Securities equal in aggregate
principal amount to the Notes of such Holder so accepted for exchange.
(e) Interest on each Exchange Security and Private Exchange
Security will accrue from the last interest payment date on which interest was
paid on the Notes surrendered in exchange therefor or, if no interest has been
paid on the Notes, from May 15, 1998.
(f) The Company shall include within the Prospectus contained
in the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," containing a summary statement of the positions taken or policies
made by the Staff of the SEC with respect to the potential "underwriter" status
of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of Exchange Securities received by such broker-dealer in
the Exchange Offer (a "Participating Broker-Dealer"). Such "Plan of
Distribution" section shall also allow the use of the Prospectus by
Participating Brokers-Dealers, and include a statement describing the means by
which Participating Broker-Dealers may resell the Exchange Securities.
If any Holder participating in the Exchange Offer makes the
representations contemplated by Section 2(h)(iv) hereof, the Company shall use
its
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best efforts to keep the Exchange Offer Registration Statement effective and
to amend and supplement the Prospectus to be lawfully delivered by all Persons
subject to the prospectus delivery requirement of the Securities Act for a
period of 180 days from the consummation of the Exchange Offer (as such period
may be extended pursuant to the last paragraph of Section 6 hereof) (the
"Applicable Period") or such earlier date as the Company shall be notified in
writing that such requesting Participating Broker-Dealer has resold all Exchange
Securities acquired in the Exchange Offer.
(g) If, prior to consummation of the Exchange Offer, any
Purchaser holds any Notes acquired by it and having the status as an unsold
allotment in the initial distribution, the Company shall, upon the request of
such Purchaser, simultaneously with the delivery of the Exchange Securities in
the Exchange Offer, issue (pursuant to the same indenture as the Exchange
Securities) and deliver to such Purchaser, in exchange (the "Private Exchange")
for the Notes held by such Purchaser, a like principal amount of debt securities
of the Company that are identical to the Exchange Securities (the "Private
Exchange Securities"). The Private Exchange Securities shall bear the same CUSIP
number as the Exchange Securities.
(h) Each Holder participating in the Exchange Offer will be
required to represent to the Company in writing that (i) any Exchange Securities
received by such Holder in the Exchange Offer will be acquired in the ordinary
course of its business, (ii) at the time of the consummation of the Exchange
Offer such Holder will have no arrangement or understanding with any Person to
participate in the distribution of the Exchange Securities within the meaning of
the Securities Act or resale of the Exchange Securities in violation of the
Securities Act, (iii) if such Holder is not a broker-dealer, that it is not
engaged in and does not intend to engage in, the distribution of the Exchange
Securities, (iv) if such Holder is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Notes that were acquired as a
result of market-making or other trading activities, that it will deliver a
prospectus, as required by law, in connection with any resale of such Exchange
Securities, and (v) such Holder is not an "affiliate" of the Company within the
meaning of the Securities Act or, if such Holder is an affiliate, that it will
comply with the registration and prospectus delivery requirements of the
Securities Act applicable to it.
(i) If (i) prior to the consummation of the Exchange Offer,
the Company in its reasonable judgment determines that a majority in aggregate
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principal amount of the Exchange Securities would not, upon receipt, be
tradeable by the Holders thereof without restriction under the Securities Act
and the Exchange Act and without material restrictions under applicable Blue Sky
or state securities laws, (ii) applicable interpretations of the Staff of the
SEC would not permit the consummation of the Exchange Offer prior to the
Effectiveness Date, (iii) subsequent to the consummation of the Private Exchange
but within one year of the Closing Date, the Purchasers so request, (iv) the
Exchange Offer is not consummated within 240 days of the Closing Date for any
reason, or (v) in the case of any Holder not permitted to participate in the
Exchange Offer or of any Holder participating in the Exchange Offer that
receives Exchange Securities that may not be sold without restriction under
state and federal securities laws (other than due solely to the status of such
Holder as an affiliate of the Company within the meaning of the Securities Act)
and, in either case contemplated by this clause (v), such Holder notifies the
Company within six months of consummation of the Exchange, then the Company
shall promptly deliver to the Holders (or in the case of any occurrence of the
event described in clause (iii) or (v) hereof, to the Purchasers or any such
Holder, as applicable) and the Trustee (in the case of clauses (i), (ii), (iii)
and (iv)) notice thereof (the "Shelf Notice") and shall as promptly as possible
thereafter file an Initial Shelf Registration pursuant to Section 3 hereof.
3. Shelf Registration
If a Shelf Notice is required to be delivered pursuant to
Section 2(i) (i), (ii), or (iv), then this Section 3 shall apply to all
Registrable Securities. If a Shelf Notice is required to be delivered pursuant
to Section 2(i)(iii), then this Section 3 shall apply solely to Private Exchange
Securities. If a Shelf Notice is required to be delivered pursuant to Section
2(i)(v), then this Section 3 shall apply solely to (i) Notes held by any Holder
thereof not permitted to participate in the Exchange Offer and (ii) Exchange
Securities that are not freely tradeable as contemplated by Section 2(i)(v)
hereof.
(a) Initial Shelf Registration. The Company shall prepare and
file with the SEC a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Registrable Securities
(the "Initial Shelf Registration"). The Initial Shelf Registration shall be on
an appropriate form permitting registration of such Registrable Securities for
resale by such Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The Company shall (i)
not permit any
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securities other than the Registrable Securities to be included in any Shelf
Registration, and (ii) use its best efforts to cause the Initial Shelf
Registration to be declared effective under the Securities Act as promptly as
practicable after the filing thereof, and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the third year anniversary
of the Closing Date (the "Effectiveness Period"), or such shorter period ending
when (i) all Registrable Securities covered by the Initial Shelf Registration
have been sold pursuant to the Shelf Registration or (ii) a Subsequent Shelf
Registration covering all of the Registrable Securities covered by and not sold
under the Initial Shelf Registration or an earlier Subsequent Shelf Registration
has been declared effective under the Securities Act; provided, that the Company
may suspend the effectiveness of a Shelf Registration for a period not to exceed
45 days in any calendar year (a "Shelf Blackout Period"), and the three year
period specified above shall be extended by the number of days in the Shelf
Blackout Period, if (i) an event occurs and is continuing as a result of which
the Shelf Registration would, in the Company's good faith judgment, contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading and (ii) (A) the Company
determines in good faith that the disclosure of such event at such time would
have a material adverse effect on the business, operations or prospects of the
Company and its subsidiaries, taken as a whole, or (B) the disclosure otherwise
relates to a pending material business transaction that has not yet been
publicly disclosed.
(b) Subsequent Shelf Registrations. If any Shelf Registration
ceases to be effective for any reason at any time during the Effectiveness
Period (other than because of the sale of all of the securities registered
thereunder), the Company shall use its best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, as soon as
practicable after such cessation of effectiveness, to amend the Shelf
Registration in a manner reasonably expected to obtain the withdrawal of the
order suspending the effectiveness thereof, or to file an additional "shelf"
Registration Statement pursuant to Rule 415 covering all of the Registrable
Securities covered by and not sold under the Initial Shelf Registration or an
earlier Subsequent Shelf Registration (a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, the Company shall use its best efforts
to cause the Subsequent Shelf Registration to be declared effective as soon as
practicable after such filing and to keep such Subsequent Shelf Registration
continuously effective for a period equal to the number of days in the
Effectiveness Period less the aggregate number of days during which the Initial
Shelf Registration, and any Subsequent Shelf Registration, was previously
continuously effective.
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4. Liquidated Damages.
(a) The Company acknowledges and agrees that the Holders of
Registrable Securities will suffer damages, and that it would not be feasible to
ascertain the extent of such damages with precision, if the Company fails to
fulfill its obligations hereunder. Accordingly, in the event of such failure by
the Company to fulfill such obligations, the Company hereby agrees to pay
liquidated damages to each Holder of Registrable Securities under the
circumstances and to the extent set forth below:
(i) if neither the Exchange Offer Registration
Statement nor the Initial Shelf Registration has been filed with the
SEC on or prior to the Filing Date; or
(ii) if neither the Exchange Offer Registration
Statement nor the Initial Shelf Registration is declared effective by
the SEC on or prior to the Effectiveness Date; or
(iii) if the Company has not exchanged Exchange
Securities for all Notes validly tendered in accordance with the terms
of the Exchange Offer within 30 days after the date on which an
Exchange Offer Registration Statement is declared effective by the SEC;
or
(iv) the Initial Shelf Registration is filed and
declared effective by the SEC but thereafter ceases to be effective
without being succeeded within 30 days by a Subsequent Shelf
Registration filed and declared effective;
(each of the foregoing, a "Registration Default").
Accordingly, upon the occurrence of a Registration Default,
the Company shall pay, or cause to be paid, as liquidated damages, and not as a
penalty, to each Holder of a Registrable Security, an additional amount (the
"Weekly Liquidated Damages Amount") equal to (A) for each weekly period
beginning on the date such Registration Default occurs for the first 90-day
period immediately following such date, $.05 per week per $1,000 principal
amount of Registrable Securities held by such Holder, and (B) for each weekly
period beginning with the first full week after the 90-day period set forth in
the foregoing
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clause (A), $.10 per week per $1,000 principal amount of Registrable Securities
held by such Holder; provided, that such liquidated damages will, in each case,
cease to accrue (subject to the occurrence of another Registration Default) on
the date on which all Registration Defaults have been cured. A Registration
Default under clause (i) above shall be cured on the date that either the
Exchange Offer Registration Statement or the Initial Shelf Registration is filed
with the SEC; a Registration Default under clause (ii) above shall be cured on
the date that either the Exchange Offer Registration Statement or the Initial
Shelf Registration is declared effective by the SEC; a Registration Default
under clause (iii) above shall be cured on the earlier of the date (A) the
Exchange Offer is consummated with respect to all Notes validly tendered or (B)
the Company delivers a Shelf Notice to the Holders of Registrable Securities;
and a Registration Default under clause (iv) above shall be cured on the earlier
of (A) the date on which the applicable Shelf Registration is no longer subject
to an order suspending the effectiveness thereof or proceedings relating thereto
or (B) a new Subsequent Shelf Registration is declared effective.
(b) The Company shall notify the Trustee within five Business
Days after each Registration Default. The Company shall pay the liquidated
damages due on the Registrable Securities by depositing with the Trustee, in
trust, for the benefit of the Holders thereof, by 12:00 noon, New York City
time, on the applicable payment dates specified in the Indenture (or other
indenture relating to the Registrable Securities), immediately available funds
in sums sufficient to pay the liquidated damages then due. The liquidated
damages amount due shall be payable semi-annually on each such interest payment
date to the record Holder of Registrable Securities entitled to receive the
interest payment to be made on such date as set forth in the Indenture,
commencing with the first payment date occurring after any Registration Default.
5. [Intentionally Left Blank]
6. Registration Procedures
In connection with the registration of any Securities pursuant
to Sections 2 or 3 hereof, the Company shall effect such registrations to permit
the sale of such Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Company shall:
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(a) Prepare and file with the SEC, on or prior to the Filing
Date, a Registration Statement or Registration Statements as prescribed by
Section 2 or 3, and use its best efforts to cause each such Registration
Statement to become effective and remain effective as provided herein; provided,
that, if (i) such filing is pursuant to Section 3 or (ii) a Prospectus contained
in an Exchange Offer Registration Statement filed pursuant to Section 2 is
required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period
relating thereto, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Company shall, if requested, furnish to
and afford the Holders of the Registrable Securities covered by such
Registration Statement, their Special Counsel, each Participating Broker-Dealer,
the managing underwriters, if any, and their counsel a reasonable opportunity to
review copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be
filed, such financial and other information and books and records of the
Company, and cause the officers, directors and employees of the Company, Company
counsel and the independent certified public accountants of the Company to
respond to such inquiries (such actions are hereinafter collectively referred to
as the "Review"), as shall be reasonably necessary, in the opinion of respective
counsel to such Holders, Participating Broker-Dealers and underwriters, to
conduct a reasonable investigation within the meaning of the Securities Act. The
Company may require each Holder to agree to keep confidential any non-public
information relating to the Company received by such Holders and not disclose
such information (other than to an Affiliate or prospective purchaser who agrees
to respect the confidentiality provisions of this Section 6(a)) until such
information has been made generally available to the public unless the release
of such information is required by law or necessary to respond to inquiries of
regulatory authorities (including the National Association of Insurance
Commissioners, or similar organizations or their successors). The Company shall
not file any Registration Statement or Prospectus or any amendments or
supplements thereto in respect of which the Holders must be afforded an
opportunity to Review prior to the filing of such document, if the Holders of a
majority in aggregate principal amount of the Registrable Securities covered by
such Registration Statement, their Special Counsel, any Participating
Broker-Dealer or the managing underwriters, if any, or their counsel shall
reasonably object to the Company if such objection states that the person or
persons making such objection believe that such Registration Statement,
Prospectus or amendment does not comply in any material respect with any
applicable law.
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(b) Provide an indenture trustee for the Registrable
Securities or the Exchange Securities, as the case may be, and cause the
Indenture (or Original Indenture) to be qualified under the TIA not later than
the effective date of the first Registration Statement; and in connection
therewith, use its best efforts to effect such changes to such indenture as may
be required for such indenture to be so qualified in accordance with the terms
of the TIA; and execute, and use its best efforts to cause such trustee to
execute, all documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable such indenture
to be so qualified in a timely manner.
(c) Prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the time periods
required hereby; cause the related Prospectus to be supplemented by any
Prospectus supplement required by Applicable Law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply in all material respects with the provisions of the
Securities Act and the Exchange Act applicable thereto with respect to the
disposition of all securities covered by such Registration Statement, as so
amended, or in such Prospectus, as so supplemented, in accordance with the
intended methods of distribution set forth in such Registration Statement or
Prospectus as so amended.
(d) Furnish to such selling Holders and Participating
Broker-Dealers who so request (i) upon the Company's receipt, a copy of the
order of the SEC declaring such Registration Statement and any post-effective
amendment thereto effective and (ii) such reasonable number of copies of such
Registration Statement and of each amendment and supplement thereto (in each
case including any documents incorporated therein by reference and all
exhibits), (iii) such reasonable number of copies of the Prospectus included in
such Registration Statement (including each preliminary Prospectus), and such
reasonable number of copies of the final Prospectus as filed by the Company
pursuant to Rule 424(b) under the Securities Act, in conformity with the
requirements of the Securities Act, and (iv) such other documents (including any
amendments required to be filed pursuant to clause (c) of this Section), as any
such Person may reasonably request. The Company hereby consents to the use of
the Prospectus by each of the selling Holders of Registrable Securities or each
such Participating Broker-Dealer, as the case may be, and the underwriters or
agents, if any, and dealers (if any), in connection with the offering and sale
of the Registrable Securities covered by, or
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the sale by Participating Broker-Dealers of the Exchange Securities pursuant to,
such Prospectus and any amendment thereto.
(e) If (A) a Shelf Registration is filed pursuant to Section 3
or (B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, notify the selling Holders of Registrable Securities, their
Special Counsel, each Participating Broker-Dealer and the managing underwriters,
if any, as promptly as possible, and confirm such notice in writing, (i) when a
Prospectus has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act, (ii) of the issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of any Prospectus or the initiation of any proceedings for
that purpose, (iii) if, at any time when a Prospectus is required by the
Securities Act to be delivered in connection with sales of Registrable
Securities, the representations and warranties of the Company contained in any
agreement (including any underwriting agreement) contemplated by Section 6(n)
below cease to be true and correct in any material respect, (iv) of the receipt
by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of a Registration Statement or any
of the Registrable Securities or the Exchange Securities to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction, or the
contemplation, initiation or threatening of any proceeding for such purpose, (v)
of the happening of any event that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires the making of any changes in such Registration Statement, Prospectus or
documents so that it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and (vi) of the Company's reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate.
(f) Prior to any public offering of Registrable Securities or
any delivery of a Prospectus contained in the Exchange Offer Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange
Securities during the Applicable Period, use its best efforts to register or
qualify, and, if applicable, to cooperate with the selling Holders of
Registrable Securities, the underwriters, if any, and their respective counsel
in connection with the registration or qualification
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(or exemption from such registration or qualification) of, such Registrable
Securities to be included in a Registration Statement for offer and sale under
the securities or Blue Sky laws of such jurisdictions in the United States as
any selling Holder, Participating Broker-Dealer or the managing underwriters, if
any, reasonably request in writing; and, if Securities are offered other than
through an Underwritten Offering, the Company shall cause its counsel to perform
Blue Sky investigations and file registrations and qualifications required to be
filed pursuant to this Section 6(f) at the expense of the Company; keep each
such registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do any
and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Securities covered by the applicable
Registration Statement; provided, that the Company shall not be required in
connection therewith to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it is not now so qualified or to subject itself to taxation
in respect of doing business in any jurisdiction in which it is not otherwise so
subject.
(g) If (A) a Shelf Registration is filed pursuant to Section 3
or (B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, use its best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification) of any of the Registrable Securities for sale
in any jurisdiction, and, if any such order is issued, to use its best efforts
to obtain the withdrawal of any such order at the earliest practicable time.
(h) If (A) a Shelf Registration is filed pursuant to Section 3
or (B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, and if requested by the managing underwriters, if any, or the
Holders of a majority in aggregate principal amount of the Registrable
Securities, (i) promptly incorporate in a Prospectus or post-effective amendment
such information as the managing underwriters, if any, or such Holders
reasonably request to be included therein required to comply with any applicable
law and (ii) make all required filings of such Prospectus or such post-effective
amendment as soon as
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practicable after the Company has received notification of such matters required
by applicable law to be incorporated in such Prospectus or post-effective
amendment; provided, that the Company shall not be required to take any action
under this clause (h) that would, in the opinion of counsel to the Company,
violate applicable law.
(i) If (A) a Shelf Registration is filed pursuant to Section 3
or (B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, cooperate with the selling Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which certificates
shall not bear any restrictive legends and shall be in a form eligible for
deposit with The Depository Trust Company ("DTC"); and enable such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriters, if any, or Holders may request at least two Business Days
prior to any sale of Registrable Securities.
(j) If (A) a Shelf Registration is filed pursuant to Section 3
or (B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, upon the occurrence of any event contemplated by paragraph
6(e)(v) or 6(e)(vi) above, as promptly as practicable prepare a supplement or
post-effective amendment to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder
or to the purchasers of the Exchange Securities to whom such Prospectus will be
delivered by a Participating Broker-Dealer, such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(k) Use its best efforts to cause the Securities covered by a
Registration Statement to be rated with the appropriate rating agencies, if
appropriate, if so requested by the Holders of a majority in aggregate principal
amount of
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Securities covered by such Registration Statement or the managing underwriters,
if any.
(l) Prior to the effective date of the first Registration
Statement relating to the Registrable Securities, (i) provide the Trustee with
certificates for the Registrable Securities in a form eligible for deposit with
DTC and (ii) provide a CUSIP number for the Registrable Securities.
(m) [Intentionally Left Blank]
(n) If a Shelf Registration is filed pursuant to Section 3,
enter into such agreements (including an underwriting agreement in form, scope
and substance as is customary in Underwritten Offerings) and take all such other
actions in connection therewith (including those reasonably requested by the
managing underwriters, if any, or the Holders of a majority of the Registrable
Securities being sold) in order to expedite or facilitate the registration or
the disposition of such Registrable Securities, and in such connection, whether
or not an underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, (i) make such representations and
warranties to the Holders and the underwriters, if any, with respect to the
business of the Company and its subsidiaries, and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, in form, substance and scope as are customarily
made by issuers to underwriters in Underwritten Offerings of debt securities
similar to the Notes, and confirm the same if and when reasonably requested;
(ii) use its best efforts to obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to the managing underwriters, if any, and the Holders
of a majority in principal amount of the Registrable Securities being sold),
addressed to each selling Holder of Registrable Securities and each of the
underwriters, if any, covering the matters customarily covered in opinions
requested in Underwritten Offerings; (iii) use its best efforts to obtain "cold
comfort" letters and updates thereof (which letters and updates (in form, scope
and substance) shall be reasonably satisfactory to the managing underwriters)
from the independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any subsidiary
of the Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in the
Registration Statement), addressed to each of the underwriters and each selling
Holder of Registrable Securities, such letters to be in customary form and
covering
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matters of the type customarily covered in "cold comfort" letters in connection
with Underwritten Offerings; and (iv) use its best efforts to deliver such
documents and certificates as may be reasonably requested by the Holders of a
majority in principal amount of the Registrable Securities being sold and the
managing underwriters, if any, to evidence the continued validity of the
representations and warranties of the Company and its subsidiaries made pursuant
to clause (i) above and to evidence compliance with any conditions contained in
the underwriting agreement or other similar agreement entered into by the
Company.
(o) Comply in all material respects with all applicable rules
and regulations of the SEC and make generally available to its security holders
earnings statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month period (or
90 days after the end of any 12-month period if such period is a fiscal year)
(i) commencing on the first day of the fiscal quarter following each fiscal
quarter in which Registrable Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(p) Upon consummation of an Exchange Offer or Private
Exchange, obtain an opinion of counsel to the Company (in form, scope and
substance customary for underwritten transactions), addressed to the Trustee for
the benefit of all Holders participating in the Exchange Offer or Private
Exchange, as the case may be, to the effect that (i) the Company has duly
authorized, executed and delivered the Exchange Securities or the Private
Exchange Securities, as the case may be, and the Indenture, and (ii) the
Exchange Securities or the Private Exchange Securities, as the case may be, and
the Indenture constitute legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
subject to customary exceptions and qualifications.
(q) If an Exchange Offer or Private Exchange is to be
consummated, upon delivery of the Registrable Securities by such Holders to the
Company (or to such other Person as directed by the Company) in exchange for the
Exchange Securities or the Private Exchange Securities, as the case may be, the
Company shall xxxx, or caused to be marked, on such Registrable Securities that
such Registrable Securities are being cancelled in exchange for the Exchange
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Securities or the Private Exchange Securities, as the case may be; in no event
shall such Registrable Securities be marked as paid or otherwise satisfied.
(r) Cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with the
NASD.
(s) Use its best efforts to take all other steps necessary to
effect the registration of the Registrable Securities covered by a Registration
Statement contemplated hereby.
The Company may require each seller of Registrable Securities
or Participating Broker-Dealer as to which any registration is being effected to
furnish to the Company such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Securities or Exchange
Securities as the Company may, from time to time, reasonably request and to
provide comments with respect to the Registration Statement to be used in
connection with any Shelf Registration. The Company may exclude from such
registration the Registrable Securities or Exchange Securities of any Seller so
long as such seller fails to furnish such information.
Each Holder of Registrable Securities and each Participating
Broker-Dealer agrees by acquisition of such Registrable Securities or Exchange
Securities of any Participating Broker-Dealer that, upon receipt of written
notice from the Company of the happening of any event of the kind described in
Section 6(e)(ii), 6(e)(iv), 6(e)(v) or 6(e)(vi), such Holder will forthwith
discontinue disposition (in the jurisdictions specified in a notice of a
6(e)(iv) event, and elsewhere in a notice of a 6(e)(ii), 6(e)(v) or 6(e)(vi)
event) of such Registrable Securities covered by such Registration Statement or
Prospectus to be sold by such Holder until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 6(j), or until
it is advised in writing (the "Advice") by the Company that offers or sales in a
particular jurisdiction may be resumed or that the use of the applicable
Prospectus may be resumed, as the case may be, and has received copies of any
amendments or supplements thereto. If the Company shall give such notice, each
of the Effectiveness Period and the Applicable Period shall be extended by the
number of days during such periods from and including the date of the giving of
such notice to and including the date when each seller of such Registrable
Securities covered by such Registration Statement shall have received
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(x) the copies of the supplemented or amended Prospectus contemplated by Section
6(j) or (y) the Advice.
7 Registration Expenses
(a) All fees and expenses incident to the Company's
performance of or compliance with this Agreement shall be borne by the Company
whether or not the Exchange Offer or a Shelf Registration is filed or becomes
effective, including, without limitation:
(i) all registration and filing fees
(including, without limitation, (A) fees with respect to filings required to be
made with the NASD by the Purchasers or in connection with an underwritten
offering and (B) fees and expenses of compliance with state securities or Blue
Sky laws (including, without limitation, reasonable fees and disbursements of
counsel in connection with Blue Sky qualifications of the Registrable Securities
or Exchange Securities and determination of the eligibility of the Registrable
Securities or Exchange Securities for investment under the laws of such
jurisdictions (x) where the Holders of Registrable Securities are located, in
the case of the Exchange Securities, or (y) as provided in Section 6(f), in the
case of Registrable Securities or Exchange Securities to be sold by a
Participating Broker-Dealer during the Applicable Period);
(ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities or
Exchange Securities in a form eligible for deposit with DTC and of printing
prospectuses if the printing of prospectuses is requested by the managing
underwriters, if any, or, in respect of Registrable Securities or Exchange
Securities to be sold by a Participating Broker-Dealer during the Applicable
Period, by the Holders of a majority in aggregate principal amount of the
Registrable Securities included in any Registration Statement or of such
Exchange Securities, as the case may be);
(iii) messenger, telephone, duplication,
word processing and delivery expenses incurred by the Company in the performance
of its obligations hereunder;
(iv) fees and disbursements of counsel for
the Company;
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(v) fees and disbursements of all
independent certified public accountants for the Company referred to in
Section 6(n)(iii) (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or incident to
such performance);
(vi) fees and expenses of any "qualified
independent underwriter" or other independent appraiser participating
in an offering pursuant to Section 3 of Schedule E to the By-laws of
the NASD, but only where the need for such a "qualified independent
underwriter" arises due to a relationship with the Company;
(vii) Securities Act liability insurance, if
the Company so desires such insurance;
(viii) fees and expenses of all other
Persons retained by the Company; internal expenses of the Company
(including, without limitation, all salaries and expenses of officers
and employees of the Company performing legal or accounting duties);
and the expense of any annual audit; and
(ix) rating agency fees and the fees and
expenses incurred in connection with the listing of the Securities to
be registered on any securities exchange.
(b) The Company shall reimburse the Holders for the reasonable
fees and disbursements of not more than one counsel chosen by the Holders of a
majority in aggregate principal amount of the Registrable Securities to be
included in any Registration Statement. Notwithstanding the foregoing, each
Holder shall pay all underwriting discounts and commissions of any underwriters
with respect to any Registrable Securities sold by or on its behalf.
8 Indemnification
(a) Indemnification by the Company. The Company shall, without
limitation as to time, indemnify and hold harmless each Holder, each
Participating Broker-Dealer selling Exchange Securities, each Person who
controls each such Holder or such Participating Broker-Dealer (within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act) and the officers, directors, partners, employees, representatives and
agents of each such
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Holder, Participating Broker-Dealer and controlling person, to the fullest
extent lawful, from and against any and all losses, claims, damages,
liabilities, costs (including, without limitation, costs of preparation and
reasonable attorneys' fees) and expenses (including, without limitation,
reasonable costs and expenses incurred in connection with investigating,
preparing, pursuing or defending against any of the foregoing) (collectively,
"Losses"), as incurred, directly or indirectly caused by, related to, based
upon, arising out of or in connection with any untrue or alleged untrue
statement of a material fact contained in any Registration Statement, Prospectus
or form of prospectus, or in any amendment or supplement thereto, or in any
preliminary prospectus, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading except insofar as such Losses arise out of or are based upon
information relating to such Holder or Participating Broker-Dealer and furnished
in writing to the Company by, and relating to, such Holder or Participating
Broker-Dealer expressly for use therein. The Company shall also indemnify
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, their officers, directors,
agents and employees and each Person who controls such Persons (within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act) to the same extent as provided above with respect to the indemnification of
the Holders or the Participating Broker-Dealers except insofar as such Losses
are based solely upon (i) information furnished by such party to the Company
expressly for use therein or (ii) such underwriter's gross negligence or willful
misconduct. The foregoing indemnity with respect to any preliminary prospectus
shall not inure to the benefit of any indemnified person from whom the person
asserting such Losses purchased securities if such untrue statement or omission
or alleged untrue statement or omission made in such preliminary prospectus is
eliminated or remedied in the Prospectus and a copy of the Prospectus shall not
have been furnished to such person in a timely manner due to the action or
inaction of such indemnified person.
(b) Indemnification by Holder of Registrable Securities. In
connection with any Registration Statement, Prospectus or form of prospectus,
any amendment or supplement thereto, or any preliminary prospectus in which a
Holder is participating, such Holder shall furnish to the Company in writing
such information as the Company reasonably requests for use in connection with
any Registration Statement, Prospectus or form of prospectus, any amendment or
supplement thereto, or any preliminary prospectus and shall, without limitation
as to time, indemnify and hold harmless the Company, its directors, officers,
agents
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and employees, each Person, if any, who controls the Company (within the
meaning of Section 15 of the Securities Act and Section 20(a) of the Exchange
Act), and the directors, officers, representatives, agents or employees of such
controlling persons, to the fullest extent lawful, from and against all Losses
arising out of or based upon any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus or form of
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement of a material fact or omission or alleged omission of a material fact
is contained in any information so furnished in writing by such Holder to the
Company expressly for use therein.
(c) Conduct of Indemnification Proceedings. If any Proceedings
shall be brought or asserted against any Person entitled to indemnity hereunder
(an "indemnified party"), such indemnified party shall promptly notify the party
or parties from which such indemnity is sought (the "indemnifying parties") in
writing; provided, however, that the failure to so notify the indemnifying
parties shall not relieve the indemnifying parties from any obligation or
liability except to the extent (but only to the extent) that it shall be finally
determined by a court of competent jurisdiction (which determination is not
subject to appeal) that the indemnifying parties have been prejudiced materially
by such failure.
The indemnifying party shall have the right, exercisable by
giving written notice to an indemnified party, within 20 business days after
receipt of written notice from such indemnified party of such Proceeding, to
assume, solely at its expense, the defense of any such Proceeding; provided,
however, that an indemnified party shall have the right to employ separate
counsel in any such Proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless: (1) the indemnifying party has agreed to
pay such fees and expenses; or (2) the indemnifying party shall have failed
promptly to assume the defense of such Proceeding or shall have failed to employ
counsel reasonably satisfactory to such indemnified party; or (3) the named
parties to any such Proceeding (including any impleaded parties) include both
such indemnified party and the indemnifying party or any of its affiliates or
controlling persons, and such indemnified party shall have been advised by
counsel that there may be one or more defenses available to such indemnified
party that are in addition to, or in conflict with, those defenses
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available to the indemnifying party or such affiliate or controlling person (in
which case, if such indemnified party notifies the indemnifying parties in
writing that it elects to employ separate counsel at the expense of the
indemnifying parties, the indemnifying parties shall not have the right to
assume the defense thereof and the reasonable fees and expenses of such counsel
shall be at the expense of the indemnifying party; it being understood, however,
that, the indemnifying party shall not, in connection with any one such
Proceeding or separate but substantially similar or related Proceedings in the
same jurisdiction, arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for such indemnified
party).
No indemnifying party shall be liable for any settlement of
any such Proceeding effected without its written consent, which consent shall
not be unreasonably withheld, but if settled with its written consent, or if
there be a final judgment for the plaintiff in any such Proceeding, each
indemnifying party jointly and severally agrees, subject to the exceptions and
limitations set forth above, to indemnify and hold harmless each indemnified
party from and against any and all Losses by reason of such settlement or
judgment. The indemnifying party shall not consent to the entry of any judgment
or enter into any settlement that does not include as an unconditional term
thereof the giving by the claimant or plaintiff to each indemnified party of a
release, in form and substance reasonably satisfactory to the indemnified party,
from all liability in respect of such Proceeding for which such indemnified
party would be entitled to indemnification hereunder (whether or not any
indemnified party is a party thereto).
(d) Contribution. If the indemnification provided for in this
Section 8 is unavailable to an indemnified party or is insufficient to hold such
indemnified party harmless for any Losses in respect of which this Section 8
would otherwise apply by its terms (other than by reason of exceptions provided
in this Section 8), then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have a joint and several obligation
to contribute to the amount paid or payable by such indemnified party as a
result of such Losses, (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party, on the one hand, and such
indemnified party, on the other hand, from the offering of the Notes, or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the indemnifying
party, on the one hand, and such indemnified
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party, on the other hand in connection with the actions, statements or omissions
that resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such indemnifying party, on the one hand,
and indemnified party, on the other hand, shall be determined by reference to,
among other things, whether any untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent any such statement or omission. The amount paid or payable by
an indemnified party as a result of any Losses shall be deemed to include any
reasonable legal or other fees or expenses actually incurred by such party in
connection with any Proceeding, to the extent such party would have been
indemnified for such fees or expenses if the indemnification provided for in
Section 8(a) or 8(b) was available to such party.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 8(d), an indemnifying
party that is a selling Holder of Registrable Securities shall not be required
to contribute, in the aggregate, any amount in excess of such Holder's Maximum
Contribution Amount. A selling Holder's "Maximum Contribution Amount" shall
equal the excess of (i) the aggregate proceeds received by such Holder pursuant
to the sale of such Registrable Securities over (ii) the aggregate amount of
damages that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement of a material fact or omission or alleged
omission of a material fact. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
The indemnity and contribution agreements contained in this
Section 8 are in addition to any liability that the indemnifying parties may
have to the indemnified parties; provided, that any excess payment made by the
Company shall be refunded to the Company by the indemnified party receiving such
excess payment.
9 Rule 144 and Rule 144A
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The Company covenants that it shall (a) file the reports
required to be filed by it (if so required) under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the request of any Holder make available
other information necessary to permit sales pursuant to Rule 144 and Rule 144A
and (b) take such further action as any Holder may reasonably request, all to
the extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act pursuant to the
exemptions provided by Rule 144 and Rule 144A. Nothing in this Section 9 shall
be deemed to require the Company to register any of its securities pursuant to
the Exchange Act.
10 Underwritten Registrations
If any of the Registrable Securities covered by any Shelf
Registration are to be sold in an Underwritten Offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Holders of a majority in aggregate principal amount of such
Registrable Securities included in such offering with the written consent of the
Company, which consent will not be unreasonably withheld.
No Holder of Registrable Securities may participate in any
Underwritten Registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
11 Miscellaneous
(a) Guarantors. The Company hereby agrees to cause each
Guarantor to be bound by the terms hereof as if it was the Company hereunder and
the guaranty was the Registrable Security.
(b) Remedies. In the event of a breach by the Company of any
of its obligations under this Agreement, each Holder, in addition to being
entitled to exercise all rights provided herein, or granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages would not be
adequate
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compensation for any loss incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(c) No Inconsistent Agreements. The Company has not entered
into, as of the date hereof, and shall not enter into, after the date of this
Agreement, any agreement with respect to any of its securities that is
inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof.
(d) 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 of the then outstanding aggregate principal amount of
Registrable Securities; provided, however, that Section 8 shall not be amended,
modified or supplemented, and waivers or consents to departures from this
proviso may not be given, unless the Company has obtained the written consent of
each Holder. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Registrable Securities 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 Holders of at least a majority in
aggregate principal amount of the Registrable Securities being sold by such
Holders pursuant to such Registration Statement; provided, that the provisions
of this sentence may not be amended, modified or supplemented except in
accordance with the provisions of the immediately preceding sentence.
(e) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, certified
first-class mail, return receipt requested, next-day air courier or facsimile:
(i) if to a Holder, at the most current
address given by such Holder to the Company in accordance with the
provisions of this Section 11(e), which address initially is, with
respect to each Holder, the address of such Holder maintained by the
Registrar under the Indenture, with a copy to Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, 300 South
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00
Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, telecopy number (213)
687-5600, Attention: Xxxxxxx X. Xxxxxxxx, Esq.; and
(ii) if to the Company, 000 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000, Attention: Chief Executive Officer, and
thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 11(e), with a copy to
Dechert Price & Xxxxxx, 4000 Xxxx Atlantic Tower, 0000 Xxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000, Attn: Xxxxxxxxxxx X. Xxxxxx.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; one business
day after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if telecopied.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee
under the Indenture at the address specified in such Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders.
(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 AS APPLIED TO
CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW
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YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR
ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN
RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE COMPANY
IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS SAID ADDRESS, SUCH
SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF ANY HOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN
ANY OTHER JURISDICTION.
(j) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
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(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement, and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein, with respect to the registration rights granted by the
Company in respect of securities sold pursuant to the Purchase Agreement. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
(l) Attorneys' Fees. In any action or Proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the prevailing party, as determined by the
courts, shall be entitled to recover reasonable attorneys' fees in addition to
its costs and expenses and any other available remedy.
(m) Securities Held by the Company or its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
its affiliates (as such term is defined in Rule 405 under the Securities Act)
(other than the Holders that are deemed to be such affiliates solely by reason
of their holdings of such Registrable Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
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REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
XXXXX MATERIAL HANDLING COMPANY
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: President and CEO
ACCEPTED AND AGREED TO:
XXXXXXXXX & COMPANY, INC.
By: /x/ Xxxxxx Xxxx
---------------------------
Name: Xxxxxx Xxxx
Title: Vice President
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxx X. Xxxx
---------------------------
Name: Xxxxx X. Xxxx
Title: Senior Managing Director
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