EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated June 25, 2003 (the "Agreement") is
entered into by and among Domino's, Inc., a Delaware corporation (the
"Company"), the guarantors listed in Schedule 1 hereto (the "Guarantors"), and
X.X. Xxxxxx Securities Inc., Banc of America Securities LLC, Banc One Capital
Markets, Inc., Bear, Xxxxxxx & Co. Inc., Citigroup Global Markets Inc., Credit
Suisse First Boston LLC, Xxxxxxx, Xxxxx & Co. and Xxxxxx Brothers Inc.
(collectively the "Initial Purchasers").
The Company, the Guarantors and the Initial Purchasers are parties to the
Purchase Agreement dated June 18, 2003 (the "Purchase Agreement"), which
provides for the sale by the Company to the Initial Purchasers of $403,000,000
aggregate principal amount of the Company's 8 1/4% Senior Subordinated Notes due
2011 (the "Securities"), which will be guaranteed on an unsecured senior
subordinated basis by each of the Guarantors. As an inducement to the Initial
Purchasers to enter into the Purchase Agreement, the Company and the Guarantors
have agreed to provide to the Initial Purchasers and their direct and indirect
transferees the registration rights set forth in this Agreement. The execution
and delivery of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the following meanings:
"Business Day" shall mean any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed.
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Exchange Dates" shall have the meaning set forth in Section 2(a)(ii)
hereof.
"Exchange Offer" shall mean the exchange offer by the Company and the
Guarantors of Exchange Securities for Registrable Securities pursuant to Section
2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference therein.
"Exchange Securities" shall mean senior subordinated notes issued by the
Company and guaranteed by the Guarantors under the Indenture containing terms
identical to the Securities (except that the Exchange Securities will not be
entitled to registration rights hereunder and
will not be subject to restrictions on transfer or to any increase in annual
interest rate for failure to comply with this Agreement) and to be offered to
Holders of Securities in exchange for Securities pursuant to the Exchange Offer.
"Guarantors" shall have the meaning set forth in the preamble
"Holders" shall mean the Initial Purchasers, for so long as they own any
Registrable Securities, and each of their successors, assigns and direct and
indirect transferees who become owners of Registrable Securities under the
Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the
term "Holders" shall include Participating Broker-Dealers.
"Indenture" shall mean the Indenture relating to the Securities dated as of
June 25, 2003 among the Company, the Guarantors and The Bank of New York, as
trustee, and as the same may be amended from time to time in accordance with the
terms thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of outstanding Registrable Securities; provided that whenever
the consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities owned directly or
indirectly by the Company or any of its affiliates shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage or amount.
"Participating Broker-Dealers" shall have the meaning set forth in Section
4(a) hereof.
"Person" shall mean an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Prospectus" shall mean (i) the prospectus included in a Registration
Statement, including any preliminary prospectus and (ii) any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
any document incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the Securities; provided that the
Securities shall cease to be Registrable Securities (i) when a Registration
Statement with respect to such Securities has been declared effective under the
Securities Act and the Exchange Offer has been completed or, in the case of a
Shelf Registration Statement, such Securities have been disposed of pursuant to
such Shelf Registration Statement, (ii) when such Securities are eligible to be
sold pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act or (iii) when such Securities are sold
pursuant to Rule 144 under circumstances after which such Securities are freely
transferable under the Securities Act, or (iv) when such Securities cease to be
outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company and the Guarantors with this
Agreement, including, without limita-
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tion, (i) all SEC, stock exchange or National Association of Securities Dealers,
Inc. registration and filing fees, (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of one counsel for any Underwriters or Holders
in connection with blue sky qualification of any Exchange Securities or
Registrable Securities), (iii) all expenses of any Persons approved by the
Company in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus and any amendments or
supplements thereto, any underwriting agreements, securities sales agreements or
other similar agreements and any other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency fees relating to the
Securities or the Exchange Securities, (v) all fees and disbursements relating
to the qualification of the Indenture under applicable securities laws, (vi) the
fees and disbursements of the Trustee and its counsel relating to the Indenture,
the Securities or the Exchange Securities, (vii) the fees and disbursements of
counsel for the Company and the Guarantors and, in the case of a Shelf
Registration Statement, the reasonable fees and disbursements of one counsel for
the Holders (which counsel shall be selected by the Majority Holders and which
counsel may also be counsel for the Initial Purchasers) and (viii) the fees and
disbursements of the independent public accountants of the Company and the
Guarantors, including the expenses of any special audits or "comfort" letters
required by or incident to the performance of and compliance with this
Agreement, but excluding fees and expenses of counsel to the Underwriters (other
than fees and expenses set forth in clause (ii) above) or the Holders and
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company and the Guarantors that covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement and all
amendments and supplements to any such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and any document incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Effectiveness Period" shall have the meaning set forth in Section
2(b) hereof.
"Shelf Registration" shall mean a registration effected pursuant to Section
2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company and the Guarantors that covers all the Registrable Securities
(but no other securities unless approved by the Holders whose Registrable
Securities are to be covered by such Shelf Registration Statement) on an
appropriate form under Rule 415 under the Securities Act, or any similar rule
that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference therein.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended from time to time.
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"Trustee" shall mean the trustee with respect to the Securities under the
Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
"Underwritten Offering" shall mean an offering in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
2. Registration Under the Securities Act. (a) To the extent not
prohibited by any applicable law or applicable interpretations of the Staff of
the SEC, the Company and the Guarantors shall use their reasonable best efforts
to (i) cause to be filed an Exchange Offer Registration Statement covering an
offer to the Holders to exchange all the Registrable Securities for Exchange
Securities and (ii) have such Registration Statement remain effective until the
earlier of (1) 180 days after the closing of the Exchange Offer, and (2) such
time as no broker-dealer that receives Exchange Securities in exchange for
Securities in the Exchange Offer holds any such Exchange Securities. The Company
and the Guarantors shall commence the Exchange Offer promptly after the Exchange
Offer Registration Statement is declared effective by the SEC and use their
reasonable best efforts to complete the Exchange Offer not later than 60 days
after such effective date.
The Company and the Guarantors shall commence the Exchange Offer by mailing
the related Prospectus, appropriate letters of transmittal and other
accompanying documents to each Holder stating, in addition to such other
disclosures as are required by applicable law,
(i) that the Exchange Offer is being made pursuant to this Agreement and that
all Registrable Securities validly tendered and not properly withdrawn
will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least
20 Business Days from the date such notice is mailed) (the "Exchange
Dates");
(iii) that any Registrable Security not tendered will remain outstanding and
continue to accrue interest but will not retain any rights under this
Agreement;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant
to the Exchange Offer will be required to surrender such Registrable
Security, together with the appropriate letters of transmittal, to the
institution and at the address (located in the Borough of Manhattan, The
City of New York) and in the manner specified in the notice, prior to the
close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than
the close of business on the last Exchange Date, by sending to the
institution and at the address (located in the Borough of Manhattan, The
City of New York) specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Registrable Securities delivered for exchange and a
statement that such Holder is withdrawing its election to have such
Securities exchanged.
As a condition to participating in the Exchange Offer, a Holder (including
any participating Broker-Dealer) will be required to represent to the Company
and the Guarantors that (i) any Exchange Securities to be received by it will be
acquired in the ordinary course of its business, (ii) it is not engaged in, and
the time of the commencement of the Exchange Offer it has no ar-
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rangement or understanding with any Person to participate in, any distribution
(within the meaning of the Securities Act) of the Exchange Securities in
violation of the provisions of the Securities Act, (iii) it is not an
"affiliate" (within the meaning of Rule 405 under Securities Act) of the Company
or any Guarantor and (iv) if such Holder is a broker-dealer that will receive
Exchange Securities for its own account in exchange for Registrable Securities
that were acquired as a result of market-making or other trading activities,
then, in accordance with current interpretations by the SEC's staff of Section 5
of the Securities Act, such Holder will deliver a Prospectus in connection with
any resale of such Exchange Securities.
As soon as practicable after the last Exchange Date, the Company and the
Guarantors shall
(i) accept for exchange Registrable Securities or portions thereof validly
tendered and not properly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all
Registrable Securities or portions thereof so accepted for exchange by the
Company and issue, and cause the Trustee to promptly authenticate and
deliver to each Holder, Exchange Securities equal in principal amount to
the principal amount of the Registrable Securities surrendered by such
Holder.
The Company and the Guarantors shall use their reasonable best efforts to
complete the Exchange Offer as provided above and shall comply with the
applicable requirements of the Securities Act, the Exchange Act and other
applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate any applicable law or applicable interpretations
of the Staff of the SEC.
(b) In the event that (i) the Company and the Guarantors determine that
the Exchange Offer Registration provided for in Section 2(a) above is not
available or may not be completed as soon as practicable after the last Exchange
Date because it would violate any applicable law or applicable interpretations
of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason
completed within 210 days after the Closing Date or (iii) upon completion of the
Exchange Offer, any Initial Purchaser shall, upon advise of counsel, so request
in connection with any offering or sale of Registrable Securities originally
purchased and still held by such Initial Purchaser, the Company and the
Guarantors shall use their reasonable best efforts to cause to be filed as soon
as practicable after such determination, date or request, as the case may be, a
Shelf Registration Statement providing for the sale of all the Registrable
Securities by the Holders thereof and to have such Shelf Registration Statement
declared effective by the SEC. To the extent a Shelf Registration Statement is
required to be filed pursuant to clause (ii) and the Exchange Offer is completed
on a date later than 210 days after the Closing Date, upon the completion of the
Exchange Offer, the Company and the Guarantors will no longer be required to
file, make effective or continue the effectiveness of the Shelf Registration
Statement, except as may be required pursuant to clause (i) or (iii).
In the event that the Company and the Guarantors are required to file a
Shelf Registration Statement pursuant to clause (iii) of the preceding sentence,
the Company and the Guarantors shall use their reasonable best efforts to file
and have declared effective by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Registrable Securities
and a Shelf Registration Statement (which may be a combined Registration
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Statement with the Exchange Offer Registration Statement) with respect to offers
and sales of Registrable Securities held by the Initial Purchasers after
completion of the Exchange Offer.
The Company and the Guarantors agree to use their reasonable best efforts
to keep the Shelf Registration Statement continuously effective until the
expiration of the period referred to in Rule 144(k) under the Securities Act
with respect to the Registrable Securities or such shorter period that will
terminate when all the Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement or are no
longer outstanding (the "Shelf Effectiveness Period"). The Company and the
Guarantors further agree to supplement or amend the Shelf Registration Statement
and the related Prospectus if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registration or if reasonably and timely
requested by a Holder of Registrable Securities with respect to information
relating to such Holder, and to use their reasonable best efforts to cause any
such amendment to become effective and such Shelf Registration Statement and
Prospectus to become usable as soon as thereafter practicable. The Company and
the Guarantors agree to furnish to the Holders of Registrable Securities copies
of any such supplement or amendment promptly after its being used or filed with
the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) and Section 2(b)
hereof. Each Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC.
In the event that either the Exchange Offer is not completed or the Shelf
Registration Statement, if required hereby, is not declared effective within 210
days after the Closing Date (the "Target Registration Date"), the interest rate
on the Registrable Securities will be increased by (i) 0.25% per annum for the
first 90-day period immediately following the Target Registration Date and (ii)
an additional 0.25% per annum with respect to each subsequent 90-day period, in
each case until the Exchange Offer is completed or the Shelf Registration
Statement, if required hereby, is declared effective by the SEC or the
Securities become freely tradable under the Securities Act, up to a maximum of
1.00% per annum of additional interest, provided that the interest rate on the
Registrable Securities shall not be increased by more than 0.25% per annum in
any 90 day period regardless of the number of defaults then existing.
If the Shelf Registration Statement has been declared effective and
thereafter either ceases to be effective or the Prospectus contained therein
ceases to be usable at any time during the Shelf Effectiveness Period in each
case other than as a result of the provisions of the penultimate paragraph of
Section 3(p), and such failure to remain effective or usable exists for more
than 30 consecutive days or more than 60 days (whether or not consecutive) in
any 12-month period, then the interest rate on the Registrable Securities will
be increased by 1.00% per annum commencing on the 31st or 61st day in such
12-month period and ending on such date that the Shelf Registration Statement
has again been declared effective or the Prospectus again becomes usable,
provided, however that in no event will such additional interest together with
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the additional interest payable pursuant to the immediately preceding paragraph,
if any, exceed 1.00%.
(e) Without limiting the remedies available to the Initial Purchasers and
the Holders, the Company and the Guarantors acknowledge that any failure by the
Company or the Guarantors to comply with their obligations under Section 2(a)
and Section 2(b) hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law, that it
will not be possible to measure damages for such injuries precisely and that, in
the event of any such failure, the Initial Purchasers or any Holder may, to the
extent permitted by applicable law, obtain such relief as may be required to
specifically enforce the Company's and the Guarantors' obligations under Section
2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with their obligations pursuant
to Section 2(a) and Section 2(b) hereof, the Company and the Guarantors shall:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected by
the Company and the Guarantors, (y) shall, in the case of a Shelf Registration,
be available for the sale of the Registrable Securities by the selling Holders
thereof and (z) shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith; and use their reasonable best efforts
to cause such Registration Statement to become effective and remain effective
for the applicable period in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period in accordance with
Section 2 hereof and cause each Prospectus to be supplemented by any required
prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424
under the Securities Act; and keep each Prospectus current during the period
described in Section 2 of this Agreement;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Initial Purchasers, to counsel for
such Holders and to each Underwriter of an Underwritten Offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus as
reasonably requested, including each preliminary Prospectus, and any amendment
or supplement thereto, in order to facilitate the sale or other disposition of
the Registrable Securities thereunder; and the Company and the Guarantors
consent to the use of such Prospectus and any amendment or supplement thereto in
accordance with applicable law by each of the selling Holders of Registrable
Securities and any such Underwriters in connection with the offering and sale of
the Registrable Securities covered by and in the manner described in such
Prospectus or any amendment or supplement thereto in accordance with applicable
law;
(d) use their reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or blue sky laws of
such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC; cooperate
with the Holders in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.; and do any and all other acts
and things that may be reasonably necessary or advisable to enable each Holder
to complete the disposition in each such jurisdiction of the Registrable
Securities owned by such Holder; provided that neither the Company nor any
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Guarantor shall be required to (i) qualify as a foreign corporation or other
entity or as a dealer in securities in any such jurisdiction where it would not
otherwise be required to so qualify, (ii) file any general consent to service of
process in any such jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of Registrable
Securities, counsel for such Holders and counsel for the Initial Purchasers
promptly and, if requested by any such Holder or counsel, confirm such advice in
writing (i) when the Shelf Registration Statement has become effective and when
any post-effective amendment thereto has been filed and becomes effective, (ii)
of any request by the SEC or any state securities authority for amendments and
supplements to the Shelf Registration Statement and related Prospectus or for
additional information after the Shelf Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities authority of
any stop order suspending the effectiveness of the Shelf Registration Statement
or the initiation of any proceedings for that purpose, (iv) if the Company or
any Guarantor receives any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose, (v) of the happening of any event
during the period a Shelf Registration Statement is effective that makes any
statement made in such Shelf Registration Statement or the related Prospectus
untrue in any material respect or that requires the making of any changes in
such Shelf Registration Statement or Prospectus in order to make the statements
therein not misleading and (vi) of any determination by the Company or any
Guarantor that a post-effective amendment to the Shelf Registration Statement is
required;
(f) use their reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide immediate notice to each Holder of the withdrawal of
any such order;
(g) in the case of a Shelf Registration, if requested, furnish to each
Holder of Registrable Securities, without charge, at least one conformed copy of
the Shelf Registration Statement and any post-effective amendment thereto
(without any documents incorporated therein by reference or exhibits thereto,
unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends and enable such Registrable Securities to be
issued in such denominations and registered in such names (consistent with the
provisions of the Indenture) as the selling Holders may reasonably request at
least one Business Day prior to the closing of any sale of Registrable
Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any event
contemplated by Section 3(e)(v) hereof, use their reasonable best efforts to
prepare and file with the SEC a supplement or post-effective amendment to the
Shelf Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to purchasers of the Registrable Securities, such
Prospectus will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and the Company
and the Guarantors shall notify the Holders of Registrable Securities to suspend
use of the Prospectus as promptly as practicable after the occurrence of such an
event, and such Holders hereby agree to suspend use of the Prospectus
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until the Company and the Guarantors have amended or supplemented the Prospectus
to correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Registration Statement,
any Prospectus, any amendment to a Registration Statement or amendment or
supplement to a Prospectus or of any document that is to be incorporated by
reference into a Registration Statement or a Prospectus after initial filing of
a Registration Statement, provide copies of such document to the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, to the Holders of Registrable Securities and their counsel) and make
such of the representatives of the Company and the Guarantors as shall be
reasonably requested by the Initial Purchasers or their counsel (and, in the
case of a Shelf Registration Statement, the Holders of Registrable Securities or
their counsel) available for a reasonable period of time for discussion of such
document; and the Company and the Guarantors shall not, at any time after
initial filing of a Registration Statement, file any Prospectus, any amendment
of or supplement to a Registration Statement or a Prospectus, or any document
that is to be incorporated by reference into a Registration Statement or a
Prospectus, of which the Initial Purchasers and their counsel (and, in the case
of a Shelf Registration Statement, the Holders of Registrable Securities and
their counsel) shall not have previously been advised and furnished a copy or to
which the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Holders or their counsel) shall reasonably object
within five Business Days after the receipt thereof, provided that to the extent
of any reasonable objection pursuant to this Section 3(j), the provisions of
Section 2(d) shall not be applicable to the Securities included in such
Registration Statement;
(k) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of the
Exchange Offer Registration Statement or Shelf Registration Statement, as
applicable;
(l) cause the Indenture to be qualified under the Trust Indenture Act in
connection with the registration of the Exchange Securities or Registrable
Securities, as the case may be; cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the Indenture to be
so qualified in accordance with the terms of the Trust Indenture Act; and
execute, and use their reasonable best efforts to cause the Trustee to execute,
all documents as may be required to effect such changes and all other forms and
documents required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for inspection by
a representative of the Holders of the Registrable Securities (an "Inspector"),
any Underwriter participating in any disposition pursuant to such Shelf
Registration Statement, and one attorney and accountant designated by the
Holders, at reasonable times and in a reasonable manner, all pertinent financial
and other records, documents and properties of the Company and the Guarantors,
and cause the respective officers, directors and employees of the Company and
the Guarantors to supply all information reasonably requested by any such
Inspector, Underwriter, attorney or accountant in connection with a Shelf
Registration Statement; provided that if any such information is identified by
the Company or any Guarantor as being confidential or proprietary, each Person
receiving such information shall take such actions as are reasonably necessary
to protect the confidentiality of such information to the extent such action is
otherwise not inconsistent with, an impairment of or in derogation of the rights
and interests of any Inspector, Holder or Underwriter);
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(n) in the case of a Shelf Registration, use their reasonable best efforts
to cause all Registrable Securities to be listed on any securities exchange or
any automated quotation system on which similar securities issued or guaranteed
by the Company or any Guarantor are then listed if requested by the Majority
Holders, to the extent such Registrable Securities satisfy applicable listing
requirements;
(o) if reasonably requested by any Holder of Registrable Securities
covered by a Shelf Registration Statement and required by applicable law or SEC
rules, promptly incorporate in a Prospectus supplement or post-effective
amendment such information with respect to such Holder as such Holder reasonably
requests to be included therein and make all required filings of such Prospectus
supplement or such post-effective amendment as soon as practicable after the
Company has received notification of the matters to be incorporated in such
filing; and
(p) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith (including
those requested in writing by the Holders of a majority in principal amount of
the Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities including, but not limited to,
entering into an Underwritten Agreement in connection with an Underwritten
Offering and in such connection, (i) to the extent possible, make such
representations and warranties to the Holders and any Underwriters of such
Registrable Securities with respect to the business of the Company and its
subsidiaries, the Registration Statement, Prospectus and documents incorporated
by reference or deemed incorporated by reference, if any, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when requested, (ii) use
reasonable best efforts to obtain opinions of counsel to the Company and the
Guarantors (which counsel and opinions, in form, scope and substance, shall be
reasonably satisfactory to the Holders and such Underwriters and their
respective counsel) addressed to each Underwriter of Registrable Securities,
covering the matters customarily covered in opinions requested in underwritten
offerings provided that the matter covered by the opinion of counsel furnished
in connection with the Purchase Agreement and applicable to such Shelf
Registration Statement shall be deemed to be reasonably satisfactory, (iii) use
reasonable best efforts to obtain "comfort," "agreed upon procedures" or similar
letters from the independent certified public accountants of the Company and the
Guarantors (and, if necessary, any other certified public accountant of any
subsidiary of the Company or any Guarantor, or of any business acquired by the
Company or any Guarantor for which financial statements and financial data are
or are required to be included in the Registration Statement) addressed to each
Underwriter of Registrable Securities, such letters to be in customary form and
covering matters of the type customarily covered in "comfort" letters in
connection with underwritten offerings and similar to the "comfort letter"
delivered pursuant to the Purchase Agreement and (iv) 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 or the Underwriters,
and which are customarily delivered in underwritten offerings, to evidence the
accuracy as of the closing date of the representations and warranties of the
Company and the Guarantors made pursuant to clause (i) above and to evidence
compliance with any customary conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company may require each
Holder of Registrable Securities to furnish to the Company such information
regarding such Holder and the proposed disposition by such Holder of such
Registrable Secu-
10
rities as the Company and the Guarantors may from time to time reasonably
request in writing. No Holder of Registrable Securities may include any of its
Registrable Securities in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Company in writing,
within 20 days after receipt of a request therefor, the information specified in
Item 507 or 508 of Regulation S-K, as applicable, of the Securities Act for use
in connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Registrable Securities who fails to
comply with the requirements of the two preceding sentences within the time
frame specified in the immediately preceding sentence shall be entitled to the
benefits of Section 2(d) of this Agreement unless and until such Holder shall
have provided all such information (it being understood that no change in the
interest rate on the Registrable Securities shall be effective for the benefit
of any Holder until such Holder provides such information). Each selling Holder
agrees to promptly furnish to the Company additional information required to be
disclosed in order to make the information previously furnished to the Company
by such Holder not materially misleading.
In the case of a Shelf Registration Statement, each Holder of Registrable
Securities agrees that, upon receipt of any notice from the Company and the
Guarantors of the happening of any event of the kind described in Section
3(e)(iii) or 3(e)(v) hereof, such Holder will forthwith discontinue disposition
of Registrable Securities pursuant to a Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof and, if so directed by the Company and the
Guarantors, such Holder will deliver to the Company and the Guarantors all
copies in its possession, other than permanent file copies then in such Holder's
possession which such Holder agrees will not be used thereafter, of the
Prospectus covering such Registrable Securities that is current at the time of
receipt of such notice. In addition, the Company may give notice of the
suspension of the offering and sale under the Shelf Registration Statement for a
period or periods upon the occurrence or existence of any pending corporate
development that, in the good faith judgment of the Board of Directors of the
Company, makes such suspension necessary.
If the Company and the Guarantors shall give any such notice to suspend the
disposition of Registrable Securities pursuant to a Registration Statement, the
Company and the Guarantors shall extend the period during which the Registration
Statement shall be maintained effective pursuant to this Agreement by the number
of days during the period from and including the date of the giving of such
notice to and including the date when the Holders shall have received copies of
the supplemented or amended Prospectus necessary to resume such dispositions or
the Company advises the Holder that the use of the Prospectus may be resumed.
Any such suspensions shall not exceed 60 days during any 365-day period.
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "Underwriters") that will
administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer. (a) The Staff of
the SEC has taken the position that any broker-dealer that receives Exchange
Securities for its own account in the Exchange Offer in exchange for Securities
that were acquired by such broker-dealer as a result of market-making or other
trading activities (a "Participating Broker-Dealer") may be deemed to be an
"underwriter" within the meaning of the Securities Act and must deliver a pro-
11
spectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Securities.
The Company and the Guarantors understand that it is the Staff's position
that if the Prospectus contained in the Exchange Offer Registration Statement
includes a plan of distribution containing a statement to the above effect and
the means by which Participating Broker-Dealers may resell the Exchange
Securities, without naming the Participating Broker-Dealers or specifying the
amount of Exchange Securities owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery obligation
under the Securities Act in connection with resales of Exchange Securities for
their own accounts, so long as the Prospectus otherwise meets the requirements
of the Securities Act.
(b) In light of the above, and notwithstanding the other provisions of
this Agreement, the Company and the Guarantors agree to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement, as would
otherwise be contemplated by Section 3(i), for a period of up to 180 days after
the last Exchange Date as contemplated by Section 2(a) (as such period may be
extended pursuant to the penultimate paragraph of Section 3 of this Agreement),
if requested by the Initial Purchasers or by one or more Participating
Broker-Dealers, in order to expedite or facilitate the disposition of any
Exchange Securities by Participating Broker-Dealers consistent with the
positions of the Staff recited in Section 4(a) above. The Company and the
Guarantors further agree that Participating Broker-Dealers shall be authorized
to deliver such Prospectus during such period in connection with the resales
contemplated by this Section 4.
(c) The Initial Purchasers shall have no liability to the Company, any
Guarantor or any Holder with respect to any request that they may make pursuant
to Section 4(b) above.
5. Indemnification and Contribution. (a) The Company and each Guarantor,
jointly and severally, agree to indemnify and hold harmless each Initial
Purchaser and each Holder, their respective affiliates, directors and officers
and each Person, if any, who controls any Initial Purchaser or any Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, legal fees and other expenses reasonably
incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that arise
out of, or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or any related Prospectus
provided by the Company to any Holder or any prospective purchaser of Exchange
Securities or Registrable Securities or are caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to any Initial
Purchaser or any Holder furnished to the Company in writing either directly or
through X.X. Xxxxxx Securities Inc. or any Holder expressly for use therein;
provided, that with respect to any such untrue statement in or omission from any
preliminary prospectus, the indemnity agreement contained in this Section 5(a)
shall not inure to the benefit of any Initial Purchaser or any Holder from whom
the person asserting any such loss, claim, damage or liability received
Securities or Exchange Securities to the extent that any such loss, claim,
damage or liability of or with respect to such Initial Purchaser or Holder
results
12
from the fact that both (i) a copy of the final prospectus was not sent or given
to such person at or prior to the written confirmation of the sale of such
Securities or Exchange Securities to such person and was required by applicable
law to be sent or given to such person at or prior to the written confirmation
of the sale of such Securities or Exchange Securities and (ii) the untrue
statement in or omission from the related preliminary prospectus was corrected
in the final prospectus unless, in either case, such failure to deliver the
final prospectus was a result of non-compliance by the Company with the
provisions of Section 3(c) of this Agreement.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, the Guarantors, the Initial Purchasers and the other
selling Holders, their respective affiliates, the directors of the Company and
the Guarantors, each officer of the Company and the Guarantors who signed the
Registration Statement and each Person, if any, who controls the Company, the
Guarantors, any Initial Purchaser and any other selling Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the indemnity set forth in paragraph (a) above, but only with
respect to any losses, claims, damages or liabilities that arise out of, or are
based upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information relating
to such Holder furnished to the Company in writing by such Holder expressly for
use in any Registration Statement or any Prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such Person (the "Indemnified Person") shall
promptly notify the Person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 5 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 5. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel to
represent the Indemnified Person and any others entitled to indemnification
pursuant to this Section 5 that the Indemnifying Person may designate in such
proceeding and shall pay the reasonable fees and expenses of such counsel
related to such proceeding, as incurred. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Person unless (i)
the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm (in addition to any local counsel) for all Indemnified Persons,
and that all such reasonable fees and expenses shall be reimbursed as they are
incurred. Any such separate firm (x) for any Initial Purchaser, its affiliates,
directors and officers and any control Persons of
13
such Initial Purchaser shall be designated in writing by X.X. Xxxxxx Securities
Inc., (y) for any Holder, its affiliates, directors and officers and any control
Persons of such Holder shall be designated in writing by the Majority Holders
and (z) in all other cases shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the immediately preceding
sentence, if at any time an Indemnified Person shall have requested the Company
to reimburse such Indemnified Person for legal or other expenses in connection
with investigating, responding to or defending any proceedings as contemplated
by this Section 5, the Company shall be liable for any settlement of any
proceedings effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Company of such request for
reimbursement, (ii) the Company shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into, and
(iii) the Company shall not have reimbursed such Indemnified Person in
accordance with such request prior to the date of such settlement; provided that
the Company shall not be liable for any settlement effected without its consent
if the Company, prior to the date of such settlement, (1) reimburses such
Indemnified Person in accordance with such request for the amount of such legal
and other expenses as the Company believes in good faith to be reasonable, and
(2) provides written notice to the Indemnified Person that the Company disputes
in good faith the reasonableness of the unpaid balance of such legal and other
expenses. The Company shall not, without prior written consent of an Indemnified
Person (which consent shall not be unreasonably withheld), effect any settlement
of any pending or threatened proceedings in respect of which indemnity could
have been sought hereunder by such Indemnified Person unless (i) such settlement
includes an unconditional release of such Indemnified Person in form and
substance reasonably satisfactory to such Indemnified Person from all liability
on claims that are the subject matter of such proceedings and (ii) does not
include any statement as to or any admission of fault, culpability or a failure
to act by or on behalf of any Indemnified Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to therein (other than as a result of
the limitations imposed on indemnification described in such sections), then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantors from the offering of the
Securities and the Exchange Securities, on the one hand, and by the Holders from
receiving Securities or Exchange Securities registered under the Securities Act,
on the other hand, or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) but also the relative fault
of the Company and the Guarantors on the one hand and the Holders on the other
in connection with the actual or alleged statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative fault of the Company and the Guarantors
on the one hand and the Holders on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and the Guarantors or by the
Holders, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
14
(e) The Company, the Guarantors and the Holders agree that it would not be
just and equitable if contribution pursuant to this Section 5 were determined by
pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in connection with any such action or claim.
Notwithstanding the provisions of this Section 5, in no event shall a Holder be
required to contribute any amount in excess of the amount by which the total
price at which the Securities or Exchange Securities sold by such Holder exceeds
the amount of any damages that such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
(f) The remedies provided for in this Section 5 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers or any Holder, their respective affiliates or any Person
controlling any Initial Purchaser or any Holder, or by or on behalf of the
Company or the Guarantors, their respective affiliates or the officers or
directors of or any Person controlling the Company or the Guarantors, (iii)
acceptance of any of the Exchange Securities and (iv) any sale of Registrable
Securities pursuant to a Shelf Registration Statement.
6. General.
(a) No Inconsistent Agreements. The Company and the Guarantors represent,
warrant and agree that (i) the rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of any other outstanding securities issued or guaranteed by the Company
or any Guarantor under any other agreement and (ii) neither the Company nor any
Guarantor has entered into, or on or after the date of this Agreement will enter
into, any agreement that is inconsistent with the rights granted to the Holders
of Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company and the Guarantors have obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or consent; provided that no amendment, modification, supplement, waiver
or consent to any departure from the provisions of Section 5 hereof shall be
effective as against any Holder of Registrable Securities unless consented to in
writing by such Holder. Any amendments, modifications, supplements, waivers or
consents pursuant to this Section 7(b) shall be by a writing executed by each of
the parties hereto. Notwithstanding the foregoing, a waiver or consent to
departure from the provisions hereof that relates exclusively to the rights of
Holders whose securities are being tendered pursuant to the Exchange Offer, and
that does not
15
affect directly or indirectly the rights of other Holders whose securities are
not being tendered pursuant to such Exchange Offer, may be given by the Holders
of a majority of the outstanding principal amount of Transfer Restricted
Securities subject to such Exchange Offer.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, telecopier, or any courier guaranteeing overnight delivery
(i) if to a Holder at the most current address given by such Holder to the
Company by means of a notice given in accordance with the provisions of this
Section 6(c),which address initially is, with respect to the Initial Purchasers,
the address set forth in the Purchase Agreement and with respect to each other
Holder, the address set forth in the records of the Trustee under the Indenture;
(ii) if to the Company and the Guarantors, initially at the Company's address
set forth in the Purchase Agreement and thereafter at such other address, notice
of which is given: in accordance with the provisions of this Section 6(c); and
(iii) to such other persons at their respective addresses as provided in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 6(c). All such notices
and communications shall be deemed to have been duly given at the time delivered
by hand, if personally delivered; five Business Days after being deposited in
the mail, postage prepaid, if mailed; when answered back, if telexed; when
receipt is acknowledged, if telecopied; and on the next Business Day if timely
delivered to an air courier guaranteeing overnight delivery. Copies of all such
notices,demands or other communications shall be concurrently delivered by the
Person giving the same to the Trustee, at the address specified in the
Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all the terms of this Agreement, and by taking and holding such
Registrable Securities such Person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement
and such Person shall be entitled to receive the benefits hereof. The Initial
Purchasers (in their capacity as Initial Purchasers) shall have no liability or
obligation to the Company or the Guarantors with respect to any failure by a
Holder (other than such Initial Purchasers and its affiliates that participate
in the initial distribution of the Securities) to comply with, or any breach by
any Holder of, any of the obligations of such Holder under this Agreement.
(e) Purchases and Sales of Securities. The Company and the Guarantors
shall not, and shall use their reasonable best efforts to cause their affiliates
(as defined in Rule 405 under the Securities Act) not to, purchase and then
resell or otherwise transfer any Registrable Securities.
(f) Third Party Beneficiaries. Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights of
other Holders hereunder.
16
(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, are not a part of this Agreement and shall not limit or
otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(j) Miscellaneous. This Agreement contains the entire agreement between
the parties relating to the subject matter hereof and supersedes all oral
statements and prior writings with respect thereto. If any term, provision,
covenant or restriction contained in this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable or against public
policy, the remainder of the terms, provisions, covenants and restrictions
contained herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. The Company, the Guarantors and the Initial
Purchasers shall endeavor in good faith negotiations to replace the invalid,
void or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, void or unenforceable
provisions.
17
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
DOMINO'S, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
DOMINO'S PIZZA, LLC
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
DOMINO'S PIZZA PMC, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
DOMINO'S FRANCHISE HOLDING CO.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
DOMINO'S PIZZA INTERNATIONAL PAYROLL
SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
DOMINO'S PIZZA INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
18
DOMINO'S PIZZA-GOVERNMENT SERVICES
DIVISION, INC.
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Secretary
DOMINO'S PIZZA NS CO.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
Confirmed and accepted as of the date
first above written:
X.X. XXXXXX SECURITIES INC.
For itself and on behalf of the several
Initial Purchasers
By: /s/ Xxx X. Xxxx
------------------------------
Authorized Signatory
19
SCHEDULE 1
Domino's Pizza, LLC
Domino's Pizza PMC, Inc.
Domino's Franchise Holding Co.
Domino's Pizza International Payroll
Services, Inc.
Domino's Pizza International, Inc.
Domino's Pizza-Government Services
Division, Inc.
Domino's Pizza NS Co.
