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EXHIBIT 4.2
EXECUTION COPY
CARMIKE CINEMAS, INC.
9 3/8% SENIOR SUBORDINATED NOTES DUE 2009
UNCONDITIONALLY GUARANTEED AS TO THE
PAYMENT OF PRINCIPAL, PREMIUM,
IF ANY, AND INTEREST BY
EASTWYNN THEATRES, INC.
WOODEN NICKEL PUB, INC.
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EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
FEBRUARY 3, 1999
Xxxxxxx, Xxxxx & Co.,
As representatives of the several Purchasers
named in Schedule I to the Purchase Agreement
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Carmike Cinemas, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to the Purchasers (as defined herein) upon the terms set forth
in the Purchase Agreement (as defined herein) its 9 3/8% Senior Subordinated
Notes due 2009, which are unconditionally guaranteed as to the payment of
principal, premium, if any, and interest by the Guarantors named on Schedule I
hereto. As an inducement to the Purchasers to enter into the Purchase Agreement
and in satisfaction of a condition to the obligations of the Purchasers
thereunder, the Company and the Guarantors agree with the Purchasers for the
benefit of holders (as defined herein) from time to time of the Registrable
Securities (as defined herein) as follows:
1. Certain Definitions. For purposes of this Exchange and
Registration Rights Agreement, the following terms shall have the following
respective meanings:
"Base Interest" shall mean the interest that would otherwise
accrue on the Securities under the terms thereof and the Indenture,
without giving effect to the provisions of this Exchange and
Registration Rights Agreement.
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The term "broker-dealer" shall mean any broker or dealer
registered with the Commission under the Exchange Act.
"Closing Date" shall mean the date on which the Securities are
initially issued.
"Commission" shall mean the United States Securities and
Exchange Commission, or any other federal agency at the time
administering the Exchange Act or the Securities Act, whichever is the
relevant statute for the particular purpose.
"Conduct Rules" shall have the meaning assigned thereto in
Section 3(d)(xix) hereof.
"Effective Time," in the case of (i) an Exchange Registration,
shall mean the time and date as of which the Commission declares the
Exchange Registration Statement effective or as of which the Exchange
Registration Statement otherwise becomes effective; (ii) a Shelf
Registration, shall mean the time and date as of which the Commission
declares the Shelf Registration Statement effective or as of which the
Shelf Registration Statement otherwise becomes effective; and (iii) a
Market Making Shelf Registration, shall mean the time and date as of
which the Commission declares the Market Making Shelf Registration
Statement effective or as of which the Market Making Shelf Registration
Statement otherwise becomes effective.
"Electing Holder" shall mean any holder of Registrable
Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(d)(ii) or
3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
or any successor thereto, as the same shall be amended from time to
time.
"Exchange Offer" shall have the meaning assigned thereto in
Section 2(a) hereof.
"Exchange Registration" shall have the meaning assigned
thereto in Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning
assigned thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto
in Section 2(a) hereof.
"Guarantors" shall have the meaning assigned thereto in the
Indenture.
The term "holder" shall mean each of the Purchasers and other
persons who acquire Registrable Securities from time to time (including
any successors or assigns), in each case for so long as such person
owns any Registrable Securities.
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"Indenture" shall mean the Indenture, dated as of February 3,
1999, between the Company, the Guarantors and The Bank of New York, as
Trustee, as the same shall be amended from time to time.
"Market Making Shelf Registration" shall have the meaning
assigned thereto in Section 2(c) hereof.
"Market Making Shelf Registration Statement" shall have the
meaning assigned thereto in Section 2(c) hereof.
"NASD" shall have the meaning assigned thereto in Section 3(d)
(xix) hereof.
"Notice and Questionnaire" means a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially in the
form of Exhibit A hereto.
The term "person" shall mean a corporation, association,
partnership, organization, business, individual, government or
political subdivision thereof or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated
as of January 27, 1999 between the Purchasers, the Guarantors and the
Company relating to the Securities.
"Purchasers" shall mean the Purchasers named in Schedule I to
the Purchase Agreement.
"Registrable Securities" shall mean the Securities; provided,
however, that a Security shall cease to be a Registrable Security when
(i) in the circumstances contemplated by Section 2(a) hereof, the
Security has been exchanged for an Exchange Security in an Exchange
Offer as contemplated in Section 2(a) hereof; provided that any
Exchange Security that, pursuant to the last two sentences of Section
2(a), is included in a prospectus for use in connection with resales by
broker-dealers shall be deemed to be a Registrable Security with
respect to Sections 5, 6 and 9 until resale of such Registrable
Security has been effected within the 180-day period referred to in
Section 2(a); (ii) in the circumstances contemplated by Section 2(b)
hereof, a Shelf Registration Statement registering such Security under
the Securities Act has been declared or becomes effective and such
Security has been sold or otherwise transferred by the holder thereof
pursuant to and in a manner contemplated by such effective Shelf
Registration Statement; (iii) such Security is sold pursuant to Rule
144 under circumstances in which any legend borne by such Security
relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed by the Company or pursuant to
the Indenture; (iv) such Security is eligible to be sold pursuant to
paragraph (k) of Rule 144; or (v) such Security shall cease to be
outstanding.
"Registration Default" shall have the meaning assigned thereto
in Section 2(d) hereof.
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"Registration Default Period" shall have the meaning assigned
thereto in Section 2(d) hereof.
"Registration Expenses" shall have the meaning assigned
thereto in Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in
Section 2(a) hereof.
"Restricted Holder" shall mean (i) a holder that is an
affiliate of the Company within the meaning of Rule 405, (ii) a holder
who acquires Exchange Securities outside the ordinary course of such
holder's business, (iii) a holder who has arrangements or
understandings with any person to participate in the Exchange Offer for
the purpose of distributing Exchange Securities and (iv) a holder that
is a broker-dealer, but only with respect to Exchange Securities
received by such broker-dealer pursuant to an Exchange Offer in
exchange for Registrable Securities acquired by the broker-dealer
directly from the Company.
"Rule 144", "Rule 405" and "Rule 415" shall mean, in each
case, such rule promulgated under the Securities Act (or any successor
provision), as the same shall be amended from time to time.
"Securities" shall mean, collectively, the 9 3/8 % Senior
Subordinated Notes due 2009 of the Company to be issued and sold to the
Purchasers, and securities issued in exchange therefor or in lieu
thereof pursuant to the Indenture. Each Security is entitled to the
benefit of the subsidiary guarantee provided for in the Indenture (the
"Guarantee") and, unless the context otherwise requires, any reference
herein to a "Security," an "Exchange Security" or a "Registrable
Security" shall include a reference to the related Guarantee.
The term "Secondary Offer Registration Statement" shall mean
(i) the Shelf Registration Statement required to be filed by the
Company pursuant to Section 2(b) hereof and/or (ii) the Market Making
Shelf Registration Statement required to be filed by the Company
pursuant to Section 2(c) hereof, in each case, as applicable. As used
herein, references to a Secondary Offer Registration Statement in the
singular shall, if applicable, be deemed to be in the plural.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned
thereto in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in
Section 2(d) hereof.
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"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended, or any successor thereto, and the rules, regulations
and forms promulgated thereunder, all as the same shall be amended from
time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein", "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the
Company agrees to file under the Securities Act, as soon as
practicable, but no later than 90 days after the Closing Date, a
registration statement relating to an offer to exchange (such
registration statement, the "Exchange Registration Statement", and such
offer, the "Exchange Offer") any and all of the Securities for a like
aggregate principal amount of debt securities issued by the Company and
guaranteed by the Guarantors, which debt securities and guarantee are
substantially identical to the Securities and the related Guarantee,
respectively (and are entitled to the benefits of a trust indenture
which is substantially identical to the Indenture or is the Indenture
and which has been qualified under the Trust Indenture Act), except
that they have been registered pursuant to an effective registration
statement under the Securities Act and do not contain provisions for
the additional interest contemplated in Section 2(d) below (such new
debt securities hereinafter called "Exchange Securities"). The Company
agrees to use its reasonable best efforts to cause the Exchange
Registration Statement to become effective under the Securities Act as
soon as practicable thereafter, but no later than 180 days after the
Closing Date. The Exchange Offer will be registered under the
Securities Act on the appropriate form and will comply with all
applicable tender offer rules and regulations under the Exchange Act.
The Company further agrees to use its reasonable best efforts to
commence and complete the Exchange Offer promptly, but no later than 45
business days after such Exchange Registration Statement has become
effective, hold the Exchange Offer open for at least 30 days and issue
Exchange Securities for all Registrable Securities that have been
properly tendered and not withdrawn on or prior to the expiration of
the Exchange Offer. The Exchange Offer will be deemed to have been
"completed" only if the debt securities and related guarantee received
by holders other than Restricted Holders in the Exchange Offer for
Registrable Securities are, upon receipt, transferable by each such
holder without restriction under Section 5 of the Securities Act and
the Exchange Act (except for the requirement to deliver a prospectus
included in the Exchange Act Registration Statement applicable to
resales by any broker-dealer of Exchange Securities received by such
broker-dealer pursuant to an Exchange Offer in exchange for Registrable
Securities other than those acquired by the broker-dealer directly from
the Company) and without material restrictions under the blue sky or
securities laws of a substantial majority of the States of the United
States of America. The Exchange Offer shall be deemed to have been
completed upon the earlier to occur of (i) the Company having exchanged
the Exchange Securities for all outstanding Registrable Securities
pursuant to the Exchange Offer and
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(ii) the Company having exchanged, pursuant to the Exchange Offer,
Exchange Securities for all Registrable Securities that have been
properly tendered and not withdrawn before the expiration of the
Exchange Offer, which shall be on a date that is at least 30 days
following the commencement of the Exchange Offer. The Company agrees
(x) to include in the Exchange Registration Statement a prospectus for
use in any resales by any holder of Exchange Securities that is a
broker-dealer and (y) to keep such Exchange Registration Statement
effective for a period (the "Resale Period") beginning when Exchange
Securities are first issued in the Exchange Offer and ending upon the
earlier of the expiration of the 180th day after the Exchange Offer has
been completed or such time as such broker-dealers no longer own any
Registrable Securities. With respect to such Exchange Registration
Statement, such holders shall have the benefit of the rights of
indemnification and contribution set forth in Sections 6(a), (c), (d)
and (e) hereof.
(b) If (i) on or prior to the time the Exchange Offer is
completed existing Commission interpretations are changed such that the
debt securities or the related guarantee received by holders other than
Restricted Holders in the Exchange Offer for Registrable Securities are
not or would not be, upon receipt, transferable by each such holder
without restriction under the Securities Act, (ii) the Exchange Offer
has not been completed within 210 days following the Closing Date or
(iii) the Exchange Offer is not available to any holder of the
Securities, the Company shall, in lieu of (or, in the case of clause
(iii), in addition to) conducting the Exchange Offer contemplated by
Section 2(a), file under the Securities Act as soon as practicable, but
no later than the later of 45 days after the time such obligation to
file arises or 90 days after the Closing Date, a "shelf" registration
statement providing for the registration of, and the sale on a
continuous or delayed basis by the holders of, all of the Registrable
Securities, pursuant to Rule 415 or any similar rule that may be
adopted by the Commission (such filing, the "Shelf Registration" and
such registration statement, the "Shelf Registration Statement"). The
Company agrees to use its reasonable best efforts (x) to cause the
Shelf Registration Statement to become or be declared effective no
later than 120 days after such Shelf Registration Statement is filed
and to keep such Shelf Registration Statement continuously effective
for a period ending on the earlier of the second anniversary of the
Effective Time or such time as there are no longer any Registrable
Securities outstanding, provided, however, that no holder shall be
entitled to be named as a selling securityholder in the Shelf
Registration Statement or to use the prospectus forming a part thereof
for resales of Registrable Securities unless such holder is an Electing
Holder, and (y) after the Effective Time of the Shelf Registration
Statement, promptly upon the request of any holder of Registrable
Securities that is not then an Electing Holder, to take any action
reasonably necessary to enable such holder to use the prospectus
forming a part thereof for resales of Registrable Securities,
including, without limitation, any action necessary to identify such
holder as a selling securityholder in the Shelf Registration Statement,
provided, however, that nothing in this clause (y) shall relieve any
such holder of the obligation to return a completed and signed Notice
and Questionnaire to the Company in accordance with Section 3(d)(iii)
hereof. The Company further agrees to supplement or make amendments to
the Shelf Registration Statement, as and when 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 rules and regulations
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thereunder for shelf registration, and the Company agrees to furnish to
each Electing Holder copies of any such supplement or amendment prior
to its being used or promptly following its filing with the Commission.
Notwithstanding the foregoing, the Company may postpone, for a
period not to exceeds 30 days, supplementing or amending the Shelf
Registration Statement if (i) the Company is in possession of material
non-public information related to a proposed financing,
recapitalization, acquisition, business combination or other material
transaction and the Board of Directors of the Company determines (in
good faith in a written resolution) that disclosure of such information
would have a material adverse effect on the business or operations of
the Company and its subsidiaries and disclosure of such information is
not otherwise required by law and (ii)the Company delivers notice
(which shall include a copy of the resolution of the Board of Directors
with respect to such determination) to the Electing Holders and any
placement agent or underwriting as contemplated by Section 3(d)(viii)
(F) to the effect that Electing Holders may not make offers or sales
under the Shelf Registration Statement; provided, however, that the
Company may deliver only two such notices within any twelve-month
period. Promptly upon the earlier of (x) public disclosure of such
material non-public information, (y) the date on which such non-public
information is no longer material and (z) 30 days after the date notice
is given by the Company pursuant to clause (ii) above, the Company
shall supplement or amend the Shelf Registration Statement as required
by the immediately preceding sentence and give notice to the Electing
Holders that offers and sales under the Shelf Registration Statement
may be resumed.
(c) The Company shall file under the Securities Act, on
the date that the Exchange Registration Statement (or in lieu thereof,
the Shelf Registration Statement) is filed with the Commission, a
"shelf" registration statement (which may be the Exchange Registration
Statement or the Shelf Registration Statement if permitted by the rules
and regulations of the Commission) pursuant to Rule 415 under the
Securities Act or any similar rule that may be adopted by the
Commission providing for the registration of, and the sale on a
continuous or delayed basis in secondary transactions by Xxxxxxx, Xxxxx
& Co. of, Securities (in the event of a Shelf Registration) or Exchange
Securities (in the event of an Exchange Offer) (such filing, the
"Market Making Shelf Registration", and such registration statement,
the "Market Making Shelf Registration Statement"). The Company agrees
to use its reasonable best efforts to cause the Market Making Shelf
Registration Statement to become or be declared effective on or prior
to (i) the date the Exchange Offer is completed pursuant to Section
2(a) above or (ii) the date the Shelf Registration becomes or is
declared effective pursuant to Section 2(b) above, and to keep such
Market Making Shelf Registration Statement continuously effective for
so long as Xxxxxxx, Sachs & Co. may be required to deliver a prospectus
in connection with transactions in the Securities or the Exchange
Securities, as the case may be. In the event that Xxxxxxx, Xxxxx & Co.
holds Securities at the time an Exchange Offer is to be conducted under
Section 2(a) above, the Company agrees that the Market Making Shelf
Registration shall provide for the resale by Xxxxxxx, Sachs & Co. of
such Securities and shall be kept continuously effective for so long as
Xxxxxxx, Xxxxx & Co. may be required to deliver a prospectus in
connection with the sale of such Securities. The
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Company further agrees to supplement or make amendments to the Market
Making Shelf Registration Statement, as and when required by the rules,
regulations or instructions applicable to the registration form used by
the Company for such Market Making Shelf Registration Statement or by
the Securities Act or rules and regulations thereunder for shelf
registration, and the Company agrees to furnish to Xxxxxxx, Sachs & Co.
copies of any such supplement or amendment prior to its being used or
promptly following its filing with the Commission.
Notwithstanding the foregoing, the Company may suspend the
offering and sale under the Market Making Shelf Registration Statement
for a period or periods the Board of Directors of the Company
reasonably determines to be necessary, but in any event not to exceed
120 days in each year during which the Market Making Shelf Registration
Statement is required to be effective and usable hereunder (measured
from the Effective Time of the Market Making Shelf Registration
Statement to successive anniversaries thereof) if (A)(i) the Company is
in possession of material nonpublic information relating to a proposed
financing, recapitalization, acquisition, disposition, business
combination or other material transaction and (ii)(x) such transaction
is required to be disclosed in the Market Making Shelf Registration
Statement, the related prospectus or any amendment or supplement
thereto, or the failure by the Company to disclose such transaction in
the Market Making Shelf Registration Statement or related prospectus,
or any amendment or supplement thereto, as then amended or
supplemented, would cause the Market Making Shelf Registration
Statement, prospectus or amendment or supplement thereto, to contain an
untrue statement of material fact or omit to state a material fact
necessary in order to make the statement therein, in the light of the
circumstances under which they were made, not misleading, (y)
information regarding the existence of such transaction has not then
been publicly disclosed by or on behalf of the Company and (z) the
Board of Directors of the Company determines in good faith that
disclosure of such transaction would not be in the best interest of the
Company or would have a material adverse effect on the consummation of
such transaction, and (B) the Company notifies Xxxxxxx, Xxxxx & Co.
within five days after such Board of Directors makes the relevant
determination set forth in clause (A).
(d) In the event that (i) the Company has not filed the
Exchange Registration Statement, the Shelf Registration Statement or
the Market Making Shelf Registration Statement on or before the date on
which such registration statement is required to be filed pursuant to
Section 2(a), 2(b) or 2(c) hereof, respectively, or (ii) such Exchange
Registration Statement, Shelf Registration Statement or Market Making
Shelf Registration Statement has not become effective or been declared
effective by the Commission on or before the date on which such
registration statement is required to become or be declared effective
pursuant to Section 2(a), 2(b) or 2(c) hereof, respectively, or (iii)
the Exchange Offer has not been completed within 45 business days after
the initial effective date of the Exchange Registration Statement
relating to the Exchange Offer (if the Exchange Offer is then required
to be made) or (iv) any Exchange Registration Statement, Shelf
Registration Statement or Market Making Shelf Registration Statement
required by Section 2(a), 2(b) or 2(c) hereof is filed and declared
effective but shall thereafter either be withdrawn by the Company or
shall become subject
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to an effective stop order issued pursuant to Section 8(d) of the
Securities Act suspending the effectiveness of such registration
statement (except as specifically permitted herein) without being
succeeded immediately by an additional registration statement filed and
declared effective (each such event referred to in clauses (i) through
(iv), a "Registration Default" and each period during which a
Registration Default has occurred and is continuing, a "Registration
Default Period"), then, as liquidated damages for such Registration
Default, subject to the provisions of Section 9(b), special interest
("Special Interest"), in addition to the Base Interest, shall accrue at
a per annum rate of 0.25% for the first 90 days of the Registration
Default Period, at a per annum rate of 0.50% for the second 90 days of
the Registration Default Period, at a per annum rate of 0.75% for the
third 90 days of the Registration Default Period and at a per annum
rate of 1.0% thereafter for the remaining portion of the Registration
Default Period; provided that the aggregate Special Interest rate shall
in no event exceed 1.0% per annum. Notwithstanding anything to the
contrary set forth herein, (1) upon filing of the Exchange Registration
Statement, the Shelf Registration Statement and/or the Market Making
Shelf Registration Statement, in the case of (i) above, (2) upon the
effectiveness of the Exchange Registration Statement, the Shelf
Registration Statement and/or the Market Making Shelf Registration
Statement, in the case of (ii) above, (3) upon completion of the
Exchange Offer, in the case of (iii) above, or (4) upon the filing of a
post-effective amendment or an additional registration statement that
causes the Exchange Registration Statement, the Shelf Registration
Statement and/or the Market Making Shelf Registration Statement to
again be declared effective or made usable in the case of (iv) above,
the Special Interest payable as a result of such clause (i), (ii),
(iii) or (iv), as applicable, shall cease accruing and the interest
rate shall return to the Base Interest.
(e) The Company shall take, and shall cause the
Guarantors to take, all actions necessary or advisable to be taken by
it to ensure that the transactions contemplated herein are effected as
so contemplated, including all actions necessary or desirable to
register the Guarantee under the registration statement contemplated in
Section 2(a), 2(b) or 2(c) hereof, as applicable.
(f) Any reference herein to a registration statement as
of any time shall be deemed to include any document incorporated, or
deemed to be incorporated, therein by reference as of such time and any
reference herein to any post-effective amendment to a registration
statement as of any time shall be deemed to include any document
incorporated, or deemed to be incorporated, therein by reference as of
such time.
3. Registration Procedures.
If the Company files a registration statement pursuant to
Section 2(a), Section 2(b) or Section 2(c), the following provisions shall
apply:
(a) At or before the Effective Time of the Exchange
Offer, the Shelf Registration or the Marketing Making Shelf
Registration, whichever may be first, the Company shall qualify the
Indenture under the Trust Indenture Act.
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(b) In the event that such qualification would require
the appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions
of the Indenture.
(c) In connection with the Company's obligations with respect
to the registration of Exchange Securities as contemplated by Section
2(a) (the "Exchange Registration"), if applicable, the Company shall,
as soon as practicable (or as otherwise specified):
(i) prepare and file with the Commission, as
soon as practicable but no later than 90 days after the
Closing Date, an Exchange Registration Statement on any form
which may be utilized by the Company and which shall permit
the Exchange Offer and resales of Exchange Securities by
broker-dealers during the Resale Period to be effected as
contemplated by Section 2(a), and use its reasonable best
efforts to cause such Exchange Registration Statement to
become effective as soon as practicable thereafter, but no
later than 180 days after the Closing Date;
(ii) as soon as practicable prepare and file
with the Commission such amendments and supplements to such
Exchange Registration Statement and the prospectus included
therein as may be necessary to effect and maintain the
effectiveness of such Exchange Registration Statement for the
periods and purposes contemplated in Section 2(a) hereof and
as may be required by the applicable rules and regulations of
the Commission and the instructions applicable to the form of
such Exchange Registration Statement, and promptly provide
each broker-dealer holding Exchange Securities with such
number of copies of the prospectus included therein (as then
amended or supplemented), in conformity in all material
respects with the requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the
Commission thereunder, as such broker-dealer reasonably may
request prior to the expiration of the Resale Period, for use
in connection with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has
requested or received copies of the prospectus included in
such Exchange Registration Statement, and confirm such advice
in writing, (A) when such Exchange Registration Statement or
the prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and,
with respect to such Exchange Registration Statement or any
post-effective amendment, when the same has become effective,
(B) of any comments by the Commission and by the blue sky or
securities commissioner or regulator of any state with respect
thereto or any request by the Commission for amendments or
supplements to such Exchange Registration Statement or
prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the
effectiveness of such Exchange Registration Statement or the
initiation or threatening of any proceedings for that purpose,
(D) if at any time the representations and warranties of the
Company contemplated by Section 5 cease to be true and correct
in all
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material respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Exchange Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (F) at any time during the
Resale Period when a prospectus is required to be delivered
under the Securities Act, that such Exchange Registration
Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of
the Commission thereunder or contains an untrue statement of a
material fact or omits to state any material fact required to
be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then
existing;
(iv) in the event that the Company would be
required to provide notice pursuant to Section 3(c)(iii)(F)
above to any broker-dealers holding Exchange Securities,
without unreasonable delay prepare and furnish to each such
holder a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to
purchasers of such Exchange Securities during the Resale
Period, such prospectus shall conform in all material respects
to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the
Commission thereunder and shall 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 not misleading in the light of the
circumstances then existing;
(v) use its reasonable best efforts to obtain
the withdrawal of any order suspending the effectiveness of
such Exchange Registration Statement or any post-effective
amendment thereto at the earliest practicable date;
(vi) use its reasonable best efforts to (A)
register or qualify the Exchange Securities under the
securities laws or blue sky laws of such jurisdictions as are
contemplated by Section 2(a), no later than the commencement
of the Exchange Offer, (B) keep such registrations or
qualifications in effect and comply with such laws so as to
permit the continuance of offers, sales and dealings therein
in such jurisdictions until the expiration of the Resale
Period and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each broker-dealer
holding Exchange Securities to consummate the disposition
thereof in such jurisdictions during the Resale Period;
provided, however, that neither the Company nor the Guarantors
shall be required for any such purpose to (1) qualify as a
foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of
this Section 3(c)(vi), (2) consent to general service of
process in any such jurisdiction or (3) make any changes to
its certificate of incorporation or by-laws or any agreement
between it and its stockholders;
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(vii) use its reasonable best efforts to obtain
the consent or approval of each governmental agency or
authority, whether federal, state or local, which may be
required to effect the Exchange Registration, the Exchange
Offer and the offering and sale of Exchange Securities by
broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange
Securities, not later than the Effective Time of the Exchange
Registration Statement; and
(ix) comply with all applicable rules and
regulations of the Commission, and make generally available to
its securityholders as soon as practicable but no later than
eighteen months after the effective date of such Exchange
Registration Statement, an earnings statement of the Company
and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule
158 thereunder).
(d) In connection with the Company's obligations with
respect to the Shelf Registration and the Market Making Shelf
Registration, as applicable, the Company shall use its reasonable best
efforts to cause the applicable Secondary Offer Registration Statement
to permit the disposition of Registrable Securities by the holders
thereof, in the case of the Shelf Registration, and of Securities or
Exchange Securities by Xxxxxxx, Xxxxx & Co., in the case of a Market
Making Shelf Registration (subject to the second paragraph of Section
2(c) hereof), in accordance with the intended method or methods of
disposition thereof provided for in the applicable Secondary Offer
Registration Statement. In connection therewith, the Company shall, as
soon as practicable (or as otherwise specified):
(i) (A) prepare and file with the Commission, as
soon as practicable, but in any case within the time periods
specified in Section 2(b) or Section 2(c) hereof, as
applicable, a Secondary Offer Registration Statement on any
form which may be utilized by the Company, which shall (x)
register all of the Registrable Securities, in the case of a
Shelf Registration, and the Securities and Exchange
Securities, in the case of a Market Making Shelf Registration,
for resale by the holders thereof in accordance with such
method or methods of disposition as may be specified in
writing by the holders of the Registrable Securities as, from
time to time, may be Electing Holders, in the case of a Shelf
Registration, or Xxxxxxx, Sachs & Co., in the case of a Market
Making Shelf Registration and (y) be, in the case of a Market
Making Shelf Registration, in the form approved by Xxxxxxx,
Sachs & Co., and (B) use its reasonable best efforts to cause
such Secondary Offer Registration Statement to become
effective as soon as practicable after such filing, but in any
case within the time periods specified in Section 2(b) or
Section 2(c) hereof, as applicable;
(ii) not less than 30 calendar days prior to the
Effective Time of the Shelf Registration Statement, mail the
Notice and Questionnaire to the holders of Registrable
Securities; no holder shall be entitled to be named as a
selling
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securityholder in the Shelf Registration Statement as of the
Effective Time, and no holder shall be entitled to use the
prospectus forming a part thereof for resales of Registrable
Securities at any time, unless such holder has returned a
completed and signed Notice and Questionnaire to the Company
by the deadline for response set forth therein; provided,
however, holders of Registrable Securities shall have at least
28 calendar days from the date on which the Notice and
Questionnaire is first mailed to such holders to return a
completed and signed Notice and Questionnaire to the Company;
(iii) after the Effective Time of the Shelf
Registration Statement, upon the request of any holder of
Registrable Securities that is not then an Electing Holder,
promptly send a Notice and Questionnaire to such holder;
provided that the Company shall not be required to take any
action to name such holder as a selling securityholder in the
Shelf Registration Statement or to enable such holder to use
the prospectus forming a part thereof for resales of
Registrable Securities until such holder has returned a
completed and signed Notice and Questionnaire to the Company;
(iv) as soon as reasonably practicable (A)
prepare and file with the Commission such amendments and
supplements to the Secondary Offer Registration Statement and
the prospectus included therein as may be necessary to effect
and maintain the effectiveness of such Secondary Offer
Registration Statement for the period specified in Section
2(b) or Section 2(c) hereof, as applicable, and as may be
required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such
Secondary Offer Registration Statement and, in the case of an
amendment to or supplement of the Market Making Shelf
Registration Statement, each in a form approved by Xxxxxxx,
Sachs & Co., and (B) furnish to the Electing Holders, in the
case of a Shelf Registration, and Xxxxxxx, Xxxxx & Co., in the
case of a Market Making Shelf Registration, copies of any such
supplement or amendment simultaneously with or prior to its
being used or filed with the Commission;
(v) comply with the provisions of the Securities
Act with respect to the disposition of all of the Registrable
Securities, Securities or Exchange Securities, as applicable,
covered by such Secondary Offer Registration Statement in
accordance with the intended methods of disposition provided
for therein by the Electing Holders, in the case of a Shelf
Registration, or Xxxxxxx, Sachs & Co., in the case of a Market
Making Shelf Registration;
(vi) provide (A) with respect to a Shelf
Registration, the Electing Holders; (B) with respect to a
Market Making Shelf Registration, Xxxxxxx, Xxxxx & Co. and its
counsel; and (C) in either case, the underwriters (which term,
for purposes of this Exchange and Registration Rights
Agreement, shall include a person deemed to be an underwriter
within the meaning of Section 2(a)(11) of the Securities Act),
if any, thereof, the sales or placement agent, if any,
therefor, and one counsel (and any local counsel) for such
underwriters or agent, the
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opportunity to participate in the preparation of such
Secondary Offer Registration Statement, each prospectus
included therein or filed with the Commission and each
amendment or supplement thereto;
(vii) for a reasonable period prior to the filing
of such Secondary Offer Registration Statement, and throughout
the period specified in Section 2(b) or Section 2(c) hereof,
as applicable, make available at reasonable times at the
Company's principal place of business or such other reasonable
place for inspection by the persons referred to in Section
3(d)(vi) who shall certify to the Company that they have a
current intention to sell the Registrable Securities pursuant
to the Shelf Registration, or the Securities or Exchange
Securities pursuant to the Market Making Shelf Registration,
as applicable, such financial and other information and books
and records of the Company, and cause the officers, employees,
counsel and independent certified public accountants of the
Company to respond to such inquiries, as shall be reasonably
necessary, in the judgment of the respective counsel referred
to in such Section 3(d)(vi), to conduct a reasonable
investigation within the meaning of Section 11 of the
Securities Act; provided, however, that each such party shall
be required to maintain in confidence and not to disclose to
any other person any information or records reasonably
designated by the Company as being confidential, until such
time as (A) such information becomes a matter of public record
(whether by virtue of its inclusion in such Secondary Offer
Registration Statement or otherwise), or (B) such person shall
be required so to disclose such information pursuant to a
subpoena or order of any court or other governmental agency or
body having jurisdiction over the matter (subject to the
requirements of such order, and only after such person shall
have given the Company prompt prior written notice of such
requirement), or (C) such information is required to be set
forth in such Secondary Offer Registration Statement or the
prospectus included therein or in an amendment to such
Secondary Offer Registration Statement or an amendment or
supplement to such prospectus in order that such Secondary
Offer Registration Statement, prospectus, amendment or
supplement, as the case may be, complies with applicable
requirements of the federal securities laws and the rules and
regulations of the Commission and does not contain an untrue
statement of a material fact or omit to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances then existing;
(viii) promptly notify each of the Electing Holders
or Xxxxxxx, Sachs & Co., as applicable, any sales or placement
agent therefor and any underwriter thereof (which notification
may be made through any managing underwriter that is a
representative of such underwriter for such purpose) and
confirm such advice in writing, (A) when such Secondary Offer
Registration Statement or the prospectus included therein or
any prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to such Secondary
Offer Registration Statement or any post-effective amendment,
when the same has become effective, (B) of any comments by the
Commission and by the blue sky or
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15
securities commissioner or regulator of any state with respect
thereto or any request by the Commission for amendments or
supplements to such Secondary Offer Registration Statement or
prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the
effectiveness of such Secondary Offer Registration Statement
or the initiation or threatening of any proceedings for that
purpose, (D) if at any time the representations and warranties
of the Company contemplated by Section 3(d)(xvii) or Section 5
cease to be true and correct in all material respects, (E) of
the receipt by the Company of any notification with respect to
the suspension of the qualification of the Registrable
Securities or the Securities or Exchange Securities, as
applicable, for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (F) if at
any time when a prospectus is required to be delivered under
the Securities Act, that such Secondary Offer Registration
Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of
the Commission thereunder or contains an untrue statement of a
material fact or omits to state any material fact required to
be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then
existing;
(ix) use its reasonable best efforts to obtain
the withdrawal of any order suspending the effectiveness of
such Secondary Offer Registration Statement or any
post-effective amendment thereto at the earliest practicable
date;
(x) if requested by any managing underwriter or
underwriters, any placement or sales agent, any Electing
Holder or Xxxxxxx, Xxxxx & Co., promptly incorporate in a
prospectus supplement or post-effective amendment such
information as is required by the applicable rules and
regulations of the Commission and as such managing underwriter
or underwriters, such agent, such Electing Holder or Xxxxxxx,
Sachs & Co. specifies should be included therein relating to
the terms of the sale of such Registrable Securities or the
Securities or Exchange Securities, as applicable, including
information with respect to the principal amount thereof being
sold by such Electing Holder, Goldman, Sachs & Co. or such
agent or to any underwriters, the name and description of such
Electing Holder, a description of Xxxxxxx, Xxxxx & Co., such
agent or such underwriter, the offering price of such
Registrable Securities, Securities or Exchange Securities, as
applicable, and any discount, commission or other compensation
payable in respect thereof and the purchase price being paid
therefor by such underwriters and with respect to any other
terms of the offering of the Registrable Securities,
Securities or Exchange Securities, as applicable, to be sold
by such Electing Holder, Goldman, Sachs & Co. or such agent or
to such underwriters, as applicable; and make all required
filings of such prospectus supplement or post-effective
amendment promptly after notification of the matters to be
incorporated in such prospectus supplement or post-effective
amendment;
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16
(xi) furnish to Xxxxxxx, Xxxxx & Co., each
Electing Holder, each placement or sales agent, if any,
therefor, each underwriter, if any, thereof and the respective
counsel referred to in Section 3(d)(vi) an executed copy (or,
in the case of an Electing Holder, a conformed copy) of such
Secondary Offer Registration Statement, each such amendment
and supplement thereto (in each case, including all exhibits
thereto (in the case of an Electing Holder of Registrable
Securities, upon request) and documents incorporated by
reference therein) and such number of copies of such Secondary
Offer Registration Statement (excluding exhibits thereto and
documents incorporated by reference therein unless
specifically so requested by Xxxxxxx, Sachs & Co., such
Electing Holder, agent or underwriter, as the case may be) and
of the prospectus included in such Secondary Offer
Registration Statement (including each preliminary prospectus
and any summary prospectus), in conformity in all material
respects with the applicable requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations
of the Commission thereunder, and such other documents, as
Xxxxxxx, Xxxxx & Co., such Electing Holder, agent, if any, and
underwriter, if any, may reasonably request in order to
facilitate the offering and disposition of the Registrable
Securities owned by such Electing Holder, the Securities or
Exchange Securities owned by Xxxxxxx, Sachs & Co., and the
Registrable Securities, Securities or Exchange Securities
offered or sold by such agent or underwritten by such
underwriter, as applicable, and to permit Xxxxxxx, Xxxxx &
Co., such Electing Holder, agent and underwriter to satisfy
the prospectus delivery requirements of the Securities Act;
and the Company hereby consents to the use of such prospectus
(including such preliminary and summary prospectus) and any
amendment or supplement thereto by Xxxxxxx, Sachs & Co.
(subject to the second paragraph of Section 2(c) hereof), each
such Electing Holder and any such agent and underwriter, in
each case in the form most recently provided to such person by
the Company, in connection with the offering and sale of the
Registrable Securities, Securities or Exchange Securities
covered by the prospectus (including such preliminary and
summary prospectus) or any supplement or amendment thereto;
(xii) use its reasonable best efforts to (A)
register or qualify the Registrable Securities, Securities or
Exchange Securities, as applicable, to be included in such
Secondary Offer Registration Statement under such securities
laws or blue sky laws of such jurisdictions as any Electing
Holder, Goldman, Sachs & Co. and each placement or sales
agent, if any, therefor and each underwriter, if any, thereof
shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to
permit the continuance of offers, sales and dealings therein
in such jurisdictions during the period the Shelf Registration
is required to remain effective under Section 2(b) above or
the period the Market Making Shelf Registration is required to
remain effective under Section 2(c) above, as applicable, and
for so long as may be necessary to enable Xxxxxxx, Xxxxx &
Co., any such Electing Holder, agent or underwriter to
complete its distribution of Registrable Securities,
Securities or Exchange Securities, as applicable, pursuant to
such Secondary Offer Registration Statement
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17
and (C) take any and all other actions as may be reasonably
necessary or advisable to enable each such Electing Holder and
Xxxxxxx, Sachs & Co., as applicable, such agent, if any, and
underwriter, if any, to consummate the disposition in such
jurisdictions of such Registrable Securities, Securities or
Exchange Securities; provided, however, that neither the
Company nor the Guarantors shall be required for any such
purpose to (1) qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(d)(xii),
(2) consent to general service of process or taxation in any
such jurisdiction or (3) make any changes to its certificate
of incorporation or by-laws or any agreement between it and
its stockholders;
(xiii) use its reasonable best efforts to obtain
the consent or approval of each governmental agency or
authority, whether federal, state or local, which may be
required of the Company or, with respect to the Registrable
Securities, Securities or Exchange Securities, as applicable,
to effect the Shelf Registration or the Market Marking Shelf
Registration, or the offering or sale in connection therewith
or to enable the selling holder or holders or Xxxxxxx, Xxxxx &
Co. to offer, or to consummate the disposition of, their
Registrable Securities, Securities or Exchange Securities, as
applicable;
(xiv) cooperate with the Electing Holders or
Xxxxxxx, Sachs & Co. and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities, Securities or Exchange
Securities to be sold, which certificates, if so required by
any securities exchange upon which any Registrable Securities,
Securities or Exchange Securities are listed, shall be
printed, penned, lithographed or engraved, or otherwise
produced by any combination of such methods, on steel engraved
borders, and which certificates shall not bear any restrictive
legends; and, in the case of an underwritten offering, enable
such Registrable Securities, Securities or Exchange
Securities, as applicable to be in such denominations and
registered in such names as the managing underwriters may
request at least two business days prior to any sale of the
Registrable Securities, Securities or Exchange Securities, as
applicable;
(xv) provide a CUSIP number for all Registrable
Securities, Securities or Exchange Securities, as applicable,
not later than the applicable Effective Time;
(xvi) enter into one or more underwriting
agreements, engagement letters, agency agreements, "best
efforts" underwriting agreements or similar agreements, as
appropriate, including customary provisions relating to
indemnification and contribution, and take such other actions
in connection therewith as, (A) in the case of a Shelf
Registration, any Electing Holders aggregating at least 20% in
aggregate principal amount of the Registrable Securities at
the time outstanding or, (B) in the case of a Market Making
Shelf Registration, Xxxxxxx, Xxxxx & Co., shall request in
order to expedite or facilitate the disposition of such
Registrable Securities, Securities or Exchange
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18
Securities, as applicable; provided that the Company shall not
be required to entered into any such agreement more than twice
with respect to all of the Registrable Securities and may
delay entering into any such agreement until the consummation
of any underwritten public offering in which the Company shall
be engaged provided that such delay is reasonable;
(xvii) whether or not an agreement of the type referred to
in Section 3(d)(xvi) hereof is entered into and whether or not
any portion of the offering contemplated by the Secondary
Offer Registration is an underwritten offering or is made
through a placement or sales agent or any other entity, (A)
make such representations and warranties to the Electing
Holders, Xxxxxxx, Sachs & Co. and the placement or sales
agent, if any, therefor and the underwriters, if any, thereof
in form, substance and scope as are customarily made in
connection with an offering of debt securities and
substantially in the form set forth in the Purchase Agreement
pursuant to any appropriate agreement or to a registration
statement filed on the form applicable to the Shelf
Registration or the Market Making Shelf Registration, as
applicable; (B) obtain an opinion of counsel to the Company in
customary form and covering such matters, of the type
customarily covered by such an opinion, as the managing
underwriters, if any, and in the case of a Shelf Registration,
as any Electing Holders of at least 20% in aggregate principal
amount of the Registrable Securities at the time outstanding
or, in the case of a Market Making Shelf Registration, as
Xxxxxxx, Xxxxx & Co. may reasonably request, addressed to such
Electing Holder or Electing Holders, Xxxxxxx, Sachs & Co. and
the placement or sales agent, if any, therefor and the
underwriters, if any, thereof and dated the effective date of
such Secondary Offer Registration Statement (and if such
Secondary Offer Registration Statement contemplates an
underwritten offering of a part or all of the Registrable
Securities, Securities or Exchange Securities,
as applicable, dated the date of the closing under the
underwriting agreement relating thereto) and the date of
filing of an amendment or supplement to such Secondary Offer
Registration Statement or any other document that is
incorporated in such Secondary Offer Registration Statement by
reference and includes financial data with respect to a fiscal
quarter or year, as the case may be, (it being agreed that the
matters to be covered by such opinion shall include the due
incorporation and good standing of the Company and its
subsidiaries; the qualification of the Company and its
subsidiaries to transact business as foreign corporations; the
due authorization, execution and delivery of the relevant
agreement of the type referred to in Section 3(d)(xvi) hereof;
the due authorization, execution, authentication and issuance,
and the validity and enforceability, of the Registrable
Securities, Securities or Exchange Securities, as applicable;
the absence of material legal or governmental proceedings
involving the Company or any of its subsidiaries; the absence
of a breach by the Company or any of its subsidiaries of, or a
default under, material agreements binding upon the Company or
any subsidiary of the Company; the absence of governmental
approvals required to be obtained in connection with the Shelf
Registration or Market Making Shelf Registration, as
applicable, the offering and sale of the Registrable
Securities, Securities or Exchange Securities,
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19
as applicable, this Exchange and Registration Rights Agreement
or any agreement of the type referred to in Section 3(d)(xvi)
hereof, except such approvals as may be required under state
securities or blue sky laws; the material compliance as to
form of such Secondary Offer Registration Statement and any
documents incorporated by reference therein and of the
Indenture with the requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the
Commission thereunder, respectively; and, as of the date of
the opinion and of the Secondary Offer Registration Statement
or most recent post-effective amendment thereto, as the case
may be, the absence from such Secondary Offer Registration
Statement and the prospectus included therein, as then amended
or supplemented, and from the documents incorporated by
reference therein (in each case, other than the financial
statements and other financial information contained therein)
of an untrue statement of a material fact or the omission to
state therein a material fact necessary to make the statements
therein not misleading (in the case of such documents, in the
light of the circumstances existing at the time that such
documents were filed with the Commission under the Exchange
Act); (C) obtain a "cold comfort" letter or letters from the
independent certified public accountants of the Company
addressed to the selling Electing Holders, Xxxxxxx, Xxxxx &
Co. the placement or sales agent, if any, therefor or the
underwriters, if any, thereof, dated (i) the effective date of
such Secondary Offer Registration Statement and (ii) the
effective date of any prospectus supplement to the prospectus
included in such Secondary Offer Registration Statement or
amendment or supplement to such Secondary Offer Registration
Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of
the latest such statements included in such prospectus (and,
if such Secondary Offer Registration Statement contemplates an
underwritten offering pursuant to any prospectus supplement to
the prospectus included in such Secondary Offer Registration
Statement or post-effective amendment to such Secondary Offer
Registration Statement which includes unaudited or audited
financial statements as of a date or for a period subsequent
to that of the latest such statements included in such
prospectus, dated the date of the closing under the
underwriting agreement relating thereto), such letter or
letters to be in customary form and covering such matters of
the type customarily covered by letters of such type; (D)
deliver such documents and certificates, including officers'
certificates, as may be reasonably requested, in the case of a
Shelf Registration, by any Electing Holders of at least 20% in
aggregate principal amount of the Registrable Securities at
the time outstanding or, in the case of a Market Making Shelf
Registration, by Xxxxxxx, Sachs & Co., and, in either case,
the placement or sales agent, if any, therefor and the
managing underwriters, if any, thereof, dated the effective
date of such Secondary Offer Registration Statement (and if
such Secondary Offer Registration Statement contemplates an
underwritten offering of a part or all of the Registrable
Securities, Securities or Exchange Securities, as applicable,
dated the date of the closing under the underwriting agreement
relating thereto) and the date of filing of an amendment or
supplement to such Secondary Offer Registration Statement or
any other document that is incorporated in such Secondary
Offer Registration Statement by reference and includes
financial data
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with respect to a fiscal quarter or year, as the case may be,
to evidence the accuracy of the representations and warranties
made pursuant to clause (A) above or those contained in
Section 5(a) hereof and the compliance with or satisfaction of
any agreements or conditions contained in the underwriting
agreement or other agreement entered into by the Company or
the Guarantors; and (E) undertake such obligations relating to
expense reimbursement, indemnification and contribution as are
provided in Section 6 hereof;
(xvii) notify in writing each holder of Registrable
Securities affected thereby and Xxxxxxx, Xxxxx & Co. of any
proposal by the Company to amend or waive any provision of
this Exchange and Registration Rights Agreement pursuant to
Section 9(h) hereof and of any amendment or waiver effected
pursuant thereto, each of which notices shall contain the text
of the amendment or waiver proposed or effected, as the case
may be;
(xix) in the event that any broker-dealer
registered under the Exchange Act shall underwrite any
Registrable Securities, Securities or Exchange Securities or
participate as a member of an underwriting syndicate or
selling group or "assist in the distribution" (within the
meaning of the Conduct Rules (the "Conduct Rules") of the
National Association of Securities Dealers, Inc. ("NASD") or
any successor thereto, as amended from time to time) thereof,
whether as a holder of such Registrable Securities, Securities
or Exchange Securities or as an underwriter, a placement or
sales agent or a broker or dealer in respect thereof, or
otherwise, assist such broker-dealer in complying with the
requirements of such Conduct Rules, including by (A) if such
Conduct Rules shall so require, engaging a "qualified
independent underwriter" (as defined in such Conduct Rules) to
participate in the preparation of the Secondary Offer
Registration Statement relating to such Registrable
Securities, Securities or Exchange Securities, as applicable,
to exercise usual standards of due diligence in respect
thereto and, if any portion of the offering contemplated by
such Secondary Offer Registration Statement is an underwritten
offering or is made through a placement or sales agent, to
recommend the yield of such Registrable Securities, Securities
or Exchange Securities, (B) indemnifying any such qualified
independent underwriter to the extent of the indemnification
of underwriters provided in Section 6 hereof, and (C)
providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the
requirements of the Conduct Rules;
(xx) comply with all applicable rules and
regulations of the Commission, and make generally available to
its securityholders as soon as practicable but in any event
not later than eighteen months after the effective date of
such Secondary Offer Registration Statement, an earnings
statement of the Company and its subsidiaries complying with
Section 11(a) of the Securities Act (including, at the option
of the Company, Rule 158 thereunder); and
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(xxi) for so long as Xxxxxxx, Sachs & Co. may be
required to deliver a prospectus in connection with the offer
and sale of Securities or Exchange Securities in secondary
transactions, to furnish to Xxxxxxx, Xxxxx & Co. copies of all
reports or other communications (financial or other) furnished
to stockholders of the Company, and deliver to Xxxxxxx, Sachs
& Co. (i) as soon as they are available, copies of any reports
and financial statements furnished to or filed with the
Commission or any national securities exchange or interdealer
automated quotation system on which the Securities or Exchange
Securities or any other securities of the Company are listed
or quoted and the documents specified in Section 4.03 of the
Indenture, as in effect on the Closing; and (ii) such
additional information concerning the business and financial
condition of the Company and its subsidiaries as Xxxxxxx,
Sachs & Co. may from time to time reasonably request (such
financial statements to be on a consolidated basis to the
extent the accounts of the Company are consolidated in reports
furnished to its stockholders generally or to the Commission).
(e) In the event that the Company would be required to
provide notice pursuant to Section 3(d)(viii)(F) above to the Electing
Holders, Xxxxxxx, Xxxxx & Co., the placement or sales agent, if any,
therefor and the managing underwriters, if any, thereof, the Company
shall without unreasonable delay prepare and furnish to each such
person a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of Registrable
Securities, Securities or Exchange Securities, as applicable, such
prospectus shall conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and shall 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 not misleading in the light of the circumstances
then existing. Each Electing Holder and Xxxxxxx, Sachs & Co. agrees,
that upon receipt of any notice from the Company pursuant to Section
3(d)(viii)(F) hereof, such Electing Holder and Xxxxxxx, Xxxxx & Co.
shall forthwith discontinue the disposition of Registrable Securities,
Securities or Exchange Securities, as applicable, pursuant to the
Secondary Offer Registration Statement applicable to such Registrable
Securities, Securities or Exchange Securities, as applicable, until
such Electing Holder or Xxxxxxx, Sachs & Co., as applicable, shall have
received copies of such amended or supplemented prospectus, and if so
directed by the Company, such Electing Holder or Xxxxxxx, Xxxxx & Co.
shall deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, then in such Electing Holder's or
Xxxxxxx, Sachs & Co.'s possession of the prospectus covering such
Registrable Securities, Securities or Exchange Securities, as
applicable, at the time of receipt of such notice.
(f) In addition to the information required to be
provided in a Notice and Questionnaire by each Electing Holder as to
which any Shelf Registration pursuant to Section 2(b) is being effected
or to be provided by Xxxxxxx, Xxxxx & Co. in connection with the Market
Making Shelf Registration pursuant to Section 2(c), the Company may
require an Electing Holder or Xxxxxxx, Sachs & Co., as applicable, to
furnish to the Company in writing such additional information regarding
such Electing Holder or
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22
Xxxxxxx, Xxxxx & Co. and such Electing Holder's or Xxxxxxx, Sachs &
Co.'s intended method of distribution of the applicable Registrable
Securities, Securities or Exchange Securities as the Company may from
time to time reasonably request in writing, but only to the extent that
such information is required or necessary in order to comply with the
Securities Act. Each such Electing Holder and Xxxxxxx, Xxxxx & Co.
agrees to notify the Company as promptly as practicable of any
inaccuracy or change in information previously furnished by such
Electing Holder or Xxxxxxx, Sachs & Co., as the case may be, to the
Company or of the occurrence of any event in either case as a result of
which any prospectus relating to such Shelf Registration or Market
Making Shelf Registration, as applicable, contains or would contain an
untrue statement of a material fact regarding such Electing Holder or
Xxxxxxx, Xxxxx & Co. or such Electing Holder's or Xxxxxxx, Sachs &
Co.'s intended method of disposition of the applicable Registrable
Securities, Securities or Exchange Securities or omits to state any
material fact regarding such Electing Holder or Xxxxxxx, Xxxxx & Co. or
such Electing Holder's or Xxxxxxx, Sachs & Co.'s intended method of
disposition of the applicable Registrable Securities, Securities or
Exchange Securities required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances
then existing, and promptly to furnish to the Company in writing any
additional information required to correct and update any previously
furnished information or required so that such prospectus shall not
contain, with respect to such Electing Holder or Xxxxxxx, Xxxxx & Co.
or the disposition of the applicable Registrable Securities, Securities
or Exchange Securities, an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances then existing.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid
promptly all expenses incident to the Company's performance of or compliance
with this Exchange and Registration Rights Agreement, including (a) all
Commission and any NASD registration, filing and review reasonable fees and
expenses including fees and disbursements of counsel for the placement or sales
agent or underwriters in connection with such registration, filing and review,
(b) all fees and expenses in connection with the qualification of the
Registrable Securities, Securities or Exchange Securities, as applicable, for
offering and sale under the state securities and blue sky laws referred to in
Section 3(d)(vi) and 3(d)(xii) hereof and determination of their eligibility for
investment under the laws of such jurisdictions as any managing underwriters or
the Electing Holders or Xxxxxxx, Sachs & Co. may designate, including reasonable
fees and disbursements of counsel for the Electing Holders or Xxxxxxx, Xxxxx &
Co. or underwriters in connection with such qualification and determination, (c)
all expenses relating to the preparation, printing, production, distribution and
reproduction of each registration statement required to be filed hereunder, each
prospectus included therein or prepared for distribution pursuant hereto, each
amendment or supplement to the foregoing, the expenses of preparing the
Securities or Exchange Securities for delivery and the expenses of printing or
producing any underwriting agreements, agreements among underwriters, selling
agreements and blue sky or legal investment memoranda and all other documents in
connection with the offering, sale or delivery of Securities or Exchange
Securities to be disposed of (including certificates representing the Securities
or
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Exchange Securities), (d) messenger, telephone and delivery expenses relating
to the offering, sale or delivery of Securities or Exchange Securities and the
preparation of documents referred in clause (c) above, (e) reasonable fees and
expenses of the Trustee under the Indenture, (f) internal expenses (including
all salaries and expenses of the Company's officers and employees performing
legal or accounting duties), (g) fees, disbursements and expenses of counsel and
independent certified public accountants of the Company (including the expenses
of any opinions or "cold comfort" letters required by or incident to such
performance and compliance), (h) fees, disbursements and expenses of any
"qualified independent underwriter" engaged pursuant to Section 3(d)(xix)
hereof, (i) reasonable fees, disbursements and expenses of one counsel for the
Electing Holders retained in connection with a Shelf Registration, as selected
by the Electing Holders of at least a majority in aggregate principal amount of
the Registrable Securities held by such Electing Holders, and one counsel for
Xxxxxxx, Sachs & Co. retained in connection with a Market Making Shelf
Registration, as selected by Xxxxxxx, Xxxxx & Co., (j) any fees charged by
securities rating services for rating the Securities or Exchange Securities and
(k) fees, expenses and disbursements of any other persons, including special
experts, retained by the Company in connection with such registration
(collectively, the "Registration Expenses"). To the extent that any Registration
Expenses are incurred, assumed or paid by any holder of Registrable Securities,
Xxxxxxx, Sachs & Co. or any placement or sales agent therefor or underwriter
thereof, the Company shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a
request therefor. Notwithstanding the foregoing, the holders of the Registrable
Securities being registered, or Xxxxxxx, Xxxxx & Co., as applicable, shall pay
all agency fees and commissions and underwriting discounts and commissions
attributable to the sale of the applicable Registrable Securities, Securities or
Exchange Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other than
the counsel and experts specifically referred to above.
5. Representations and Warranties.
The Company and the Guarantors represent and warrant to, and
agree with, each Purchaser and each of the holders from time to time of
Registrable Securities that:
(a) Each registration statement covering Registrable
Securities, Securities or Exchange Securities and each prospectus
(including any preliminary or summary prospectus) contained therein or
furnished pursuant to Section 3(c) or Section 3(d) hereof and any
further amendments or supplements to any such registration statement or
prospectus, when it becomes effective or is filed with the Commission,
as the case may be, and, in the case of an underwritten offering of
Registrable Securities, Securities or Exchange Securities, at the time
of the closing under the underwriting agreement relating thereto, will
conform in all material respects to the requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and 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 not misleading; and
at all times subsequent to the applicable Effective Time when a
prospectus would be required to be delivered under the Securities Act,
other than (A) from (i) such time as a notice has been given to holders
of Registrable Securities or Xxxxxxx, Sachs & Co., as
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applicable, pursuant to Section 3(c)(iii)(F) or Section (d)(viii)(F)
hereof until (ii) such time as the Company furnishes an amended or
supplemented prospectus pursuant to Section 3(c)(iv) or Section 3(e)
hereof or (B) during any suspension of offering and sale pursuant to
the second paragraph of Section 2 (b) or 2(c) hereof, each such
registration statement, and each prospectus (including any summary
prospectus) contained therein or furnished pursuant to Section 3(c) or
Section 3(d) hereof, as then amended or supplemented, will conform in
all material respects to the requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder and 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 not misleading in the light of
the circumstances then existing; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by a holder of Registrable
Securities or Xxxxxxx, Xxxxx & Co., as applicable, expressly for use
therein.
(b) Any documents incorporated by reference in any
prospectus referred to in Section 5(a) hereof, when they become or
became effective or are or were filed with the Commission, as the case
may be, will conform or conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable,
and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by a holder of Registrable
Securities or Xxxxxxx, Sachs & Co., as applicable, expressly for use
therein.
(c) The compliance by the Company with all of the
provisions of this Exchange and Registration Rights Agreement and the
consummation of the transactions herein contemplated will not conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or
any subsidiary of the Company is a party or by which the Company or any
subsidiary of the Company is bound or to which any of the property or
assets of the Company or any subsidiary of the Company is subject other
than any such conflict, breach or violation as would not, singly or in
the aggregate, have a material adverse effect or result in any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, nor will such action result in any violation of the
provisions of the certificate of incorporation, as amended, or the
by-laws of the Company or the Guarantors or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any subsidiary of the Company or any
of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the consummation by the Company and the
Guarantors of the transactions contemplated by this Exchange and
Registration Rights Agreement, except in connection with the
registration under the
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Securities Act of the Registrable Securities, Securities or Exchange
Securities, qualification of the Indenture under the Trust Indenture
Act, filings of reports by the Company under the Exchange Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or blue sky laws in connection
with the offering and distribution of the Registrable Securities,
Securities or Exchange Securities.
(d) This Exchange and Registration Rights Agreement has
been duly authorized, executed and delivered by the Company and the
Guarantors.
6. Indemnification.
(a) Indemnification by the Company and the Guarantors.
The Company and the Guarantors, jointly and severally, will indemnify
and hold harmless each of the holders of Registrable Securities
included in an Exchange Registration Statement, each of the Electing
Holders of Registrable Securities included in a Shelf Registration
Statement and Xxxxxxx, Xxxxx & Co. as holder of Securities or Exchange
Securities included in a Market Making Shelf Registration Statement and
each person who participates as a placement or sales agent or as an
underwriter in any offering or sale of such Registrable Securities,
Securities or Exchange Securities against any losses, claims, damages
or liabilities, joint or several, to which Xxxxxxx, Sachs & Co., or
such holder, Electing Holder, agent or underwriter may become subject
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Exchange Registration Statement or
Secondary Offer Registration Statement, as the case may be, under which
such Registrable Securities, Securities or Exchange Securities, were
registered under the Securities Act, or any preliminary, final or
summary prospectus contained therein or furnished by the Company to
Xxxxxxx, Xxxxx & Co., any such holder, Electing Holder, agent or
underwriter, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse Xxxxxxx, Sachs &
Co., such holder, such Electing Holder, such agent and such underwriter
for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such action or claim as
such expenses are incurred; provided, however, that neither the Company
nor any Guarantor shall be liable to any such person in any such case
to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, or
preliminary, final or summary prospectus, or amendment or supplement
thereto, in reliance upon and in conformity with written information
furnished to the Company by such person expressly for use therein.
(b) Indemnification by the Holders and any Agents and
Underwriters in Connection with any Shelf Registration. The Company may
require, as a condition to including any Registrable Securities in any
Shelf Registration filed pursuant to Section 2(b) hereof and to
entering into any underwriting agreement with respect thereto, that the
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Company shall have received an undertaking reasonably satisfactory to
it from the Electing Holder of such Registrable Securities and from
each underwriter named in any such underwriting agreement, severally
and not jointly, to (i) indemnify and hold harmless the Company, the
Guarantors, and all other holders of Registrable Securities, against
any losses, claims, damages or liabilities to which the Company, the
Guarantors or such other holders of Registrable Securities may become
subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in such registration statement,
or any preliminary, final or summary prospectus contained therein or
furnished by the Company to any such Electing Holder, agent or
underwriter, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Electing Holder or underwriter expressly for use therein, and (ii)
reimburse the Company and the Guarantors for any legal or other
expenses reasonably incurred by the Company and the Guarantors in
connection with investigating or defending any such action or claim as
such expenses are incurred; provided, however, that no such Electing
Holder shall be required to undertake liability to any person under
this Section 6(b) for any amounts in excess of the dollar amount of the
proceeds to be received by such Electing Holder from the sale of such
Electing Holder's Registrable Securities pursuant to such registration.
(c) Indemnification by Xxxxxxx, Xxxxx & Co. and any
Agents and Underwriters in Connection with the Market Making Shelf
Registration. The Company may require, as a condition to including any
Securities or Exchange Securities in the Market Making Shelf
Registration Statement filed pursuant to Section 2(c) hereof and to
entering into any underwriting agreement with respect thereto, that the
Company shall have received an undertaking reasonably satisfactory to
it from each underwriter named in any such underwriting agreement,
severally and not jointly, to, and Xxxxxxx, Sachs & Co., shall, and
hereby agrees to, (i) indemnify and hold harmless the Company and the
Guarantors, against any losses, claims, damages or liabilities to which
the Company or the Guarantors may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Market Making Shelf Registration Statement, or any
preliminary, final or summary prospectus contained therein or furnished
by the Company to Xxxxxxx, Xxxxx & Co. or to any such agent or
underwriter, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by
Xxxxxxx, Sachs & Co. or such underwriter expressly for use therein, and
(ii) reimburse the Company and the Guarantors for any legal or other
expenses reasonably incurred by the Company and the
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Guarantors in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that,
in the case of Securities held by Xxxxxxx, Xxxxx & Co. at the time of
the Exchange Offer, Xxxxxxx, Sachs & Co. shall not be required to
undertake liability to any person under this Section 6(c) for any
amounts in excess of the dollar amount of the proceeds to be received
by Xxxxxxx, Xxxxx & Co. from the sale of such Securities by Xxxxxxx,
Sachs & Co. pursuant to the Market Making Shelf Registration.
(d) Notices of Claims, Etc. Promptly after receipt by an
indemnified party under subsection (a), (b) or (c) above of written
notice of the commencement of any action, such indemnified party shall,
if a claim in respect thereof is to be made against an indemnifying
party pursuant to the indemnification provisions of or contemplated by
this Section 6, notify such indemnifying party in writing of the
commencement of such action; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may
have to any indemnified party otherwise than under the indemnification
provisions of or contemplated by Section 6(a), 6(b) or 6(c) hereof. In
case any such action shall be brought against any indemnified party and
it shall notify an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense
thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless
such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such
action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of
any indemnified party. The indemnifying party shall not be required to
indemnify the indemnified party for any amount paid or payable by the
indemnified party in the settlement of any proceeding effected without
the written consent of the indemnifying party, which consent shall not
be unreasonably withheld.
(e) Contribution. If for any reason the indemnification
provisions contemplated by Section 6(a), 6(b) or 6(c) hereof are
unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and the
indemnified
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party in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative fault of such indemnifying party and indemnified party shall
be determined by reference to, among other things, whether the 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 by such indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto agree
that it would not be just and equitable if contributions pursuant to
this Section 6(e) were determined by pro rata allocation (even if the
holders or any agents or underwriters or all of them were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to in
this Section 6(e). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, or liabilities (or actions
in respect thereof) referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 6(e), neither any
holder nor, in the case of a Market Making Shelf Registration relating
to the sale by Xxxxxxx, Xxxxx & Co. of Securities held by it a the time
of the Exchange Offer, Xxxxxxx, Sachs & Co. shall be required to
contribute any amount in excess of the amount by which the dollar
amount of the proceeds received by such holder from the sale of any
Registrable Securities or Xxxxxxx, Xxxxx & Co. from the sale of any
such Securities (after deducting any fees, discounts and commissions
applicable thereto) exceeds the amount of any damages which such holder
or Xxxxxxx, Sachs & Co., as applicable, have otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission, and no underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which
the Registrable Securities, Securities or Exchange Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such underwriter 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. The holders',
Xxxxxxx, Xxxxx & Co.'s and any underwriters' obligations in this
Section 6(e) to contribute shall be several and not joint.
(f) The obligations of the Company and the Guarantors
under this Section 6 shall be in addition to any liability which the
Company or the Guarantors may otherwise have and shall extend, upon the
same terms and conditions, to each officer, director and partner of
Xxxxxxx, Sachs & Co., each holder, agent and underwriter and each
person, if any, who controls Xxxxxxx, Xxxxx & Co., any holder, agent or
underwriter within the meaning of the Securities Act; and the
obligations of Xxxxxxx, Sachs & Co., the holders and any agents or
underwriters contemplated by this Section 6 shall be in addition to any
liability which Xxxxxxx, Xxxxx & Co., the respective holder, agent or
underwriter may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company or the
Guarantors (including any person who, with his consent, is named in any
registration statement as about to become a director of the Company or
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the Guarantors) and to each person, if any, who controls the Company or
the Guarantors within the meaning of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable
Securities covered by the Shelf Registration are to be sold pursuant to
an underwritten offering, the managing underwriter or underwriters
thereof shall be designated by Electing Holders holding at least a
majority in aggregate principal amount of the Registrable Securities to
be included in such offering, provided that such designated managing
underwriter or underwriters is or are reasonably acceptable to the
Company.
(b) Participation by Holders. Each holder of Registrable
Securities hereby agrees with each other such holder that no such
holder may participate in any underwritten offering hereunder unless
such holder (i) 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 (ii)
completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. Rule 144.
The Company covenants to the holders of Registrable Securities
and Xxxxxxx, Xxxxx & Co., that to the extent it shall be required to do so under
the Exchange Act, the Company shall timely file the reports required to be filed
by it under the Exchange Act or the Securities Act (including the reports under
Sections 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of
Rule 144 adopted by the Commission under the Securities Act) and the rules and
regulations adopted by the Commission thereunder, and shall take such further
action as any holder of Registrable Securities or Xxxxxxx, Sachs & Co., may
reasonably request, all to the extent required from time to time to enable such
holder to sell Registrable Securities or Xxxxxxx, Xxxxx & Co., to sell
Securities or Exchange Securities without registration under the Securities Act
within the limitations of the exemption provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted by the Commission. Upon the
written request of any holder of Registrable Securities or Xxxxxxx, Sachs & Co.
in connection with that holder's or Xxxxxxx, Xxxxx & Co.'s sale pursuant to Rule
144, the Company shall deliver to such holder or Xxxxxxx, Sachs & Co. a written
statement as to whether it has complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents,
warrants, covenants and agrees that it has not granted, and shall not
grant, registration rights with respect to Registrable Securities,
Securities or Exchange Securities or any other securities which would
be inconsistent with the terms contained in this Exchange and
Registration Rights Agreement.
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(b) Specific Performance. The parties hereto acknowledge
that there would be no adequate remedy at law if the Company fails to
perform any of its obligations hereunder and that the Purchasers and
the holders from time to time of the Registrable Securities may be
irreparably harmed by any such failure, and accordingly agree that the
Purchasers and such holders, in addition to any other remedy to which
they may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of the Company under this
Exchange and Registration Rights Agreement in accordance with the terms
and conditions of this Exchange and Registration Rights Agreement, in
any court of the United States or any State thereof having
jurisdiction.
(c) Notices. All notices, requests, claims, demands,
waivers and other communications hereunder shall be in writing and
shall be deemed to have been duly given when delivered by hand, if
delivered personally or by courier, or three days after being deposited
in the mail (registered or certified mail, postage prepaid, return
receipt requested) as follows: If to the Company, to it at, 0000 Xxxxx
Xxxxxx, X.X. Xxx 000, Xxxxxxxx, Xxxxxxx 00000-0000, telecopier (706)
324-0470, if to Xxxxxxx, Xxxxx & Co., to it at, 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, telecopier (000) 000-0000, Attention: Xxxxx X.
Xxxxxxxxx; and if to a holder, to the address of such holder set forth
in the security register or other records of the Company, or to such
other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of
this Exchange and Registration Rights Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the parties
hereto and the holders from time to time of the Registrable Securities
and the respective successors and assigns of the parties hereto and
such holders. In the event that any transferee of any holder of
Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or
otherwise, such transferee shall, without any further writing or action
of any kind, be deemed a beneficiary hereof for all purposes and such
Registrable Securities shall be held subject to all of the terms of
this Exchange and Registration Rights Agreement, and by taking and
holding such Registrable Securities such transferee shall be entitled
to receive the benefits of, and be conclusively deemed to have agreed
to be bound by all of the applicable terms and provisions of this
Exchange and Registration Rights Agreement. If the Company shall so
request, any such successor, assign or transferee shall agree in
writing to acquire and hold the Registrable Securities subject to all
of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Exchange and Registration Rights Agreement or made pursuant hereto
shall remain in full force and effect regardless of any investigation
(or statement as to the results thereof) made by or on behalf of
Xxxxxxx, Xxxxx & Co. or any holder of Registrable Securities, any
director, officer or partner of Xxxxxxx, Sachs & Co. or such holder,
any agent or underwriter or any director, officer or partner thereof,
or any controlling person of any of the foregoing, and shall survive
delivery of and payment for the Securities pursuant to the Purchase
Agreement and the
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transfer and registration of Securities by such holder or Xxxxxxx,
Sachs & Co. and the consummation of an Exchange Offer.
Anything herein to the contrary notwithstanding, the
indemnity agreement of the Company and the Guarantors in Section 6(a)
hereof, the representations and warranties in Section 5(a) and Section
5(b) hereof and any representation or warranty as to the accuracy of
the Secondary Offer Registration Statement (or any preliminary, final
or summary prospectus contained therein) contained in any certificate
furnished by the Company pursuant to Section 3(d)(xvii) hereof, insofar
as they may constitute a basis for indemnification for liabilities
(other than payment by the Company and the Guarantors of expenses
incurred or paid in the successful defense of any action, suit or
proceeding) arising under the Securities Act, shall not extend to the
extent of any interest therein of a controlling person or partner of
Xxxxxxx, Xxxxx & Co. who is a director, officer or controlling person
of the Company when the Exchange Registration Statement or the
Secondary Offer Registration Statement has become effective, except in
each case to the extent that an interest of such character shall have
been determined by a court of appropriate jurisdiction as not against
public policy as expressed in the Securities Act. Unless in the opinion
of counsel for the Company the matter has been settled by controlling
precedent, the Company will, if a claim for such indemnification is
asserted, submit to a court of appropriate jurisdiction the question
whether such interest is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
(f) GOVERNING LAW. THIS EXCHANGE AND REGISTRATION RIGHTS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several
Sections and paragraphs of this Exchange and Registration Rights
Agreement are inserted for convenience only, do not constitute a part
of this Exchange and Registration Rights Agreement and shall not affect
in any way the meaning or interpretation of this Exchange and
Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and
Registration Rights Agreement and the other writings referred to herein
(including the Indenture and the form of Securities) or delivered
pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This
Exchange and Registration Rights Agreement supersedes all prior
agreements and understandings between the parties with respect to its
subject matter. This Exchange and Registration Rights Agreement may be
amended and the observance of any term of this Exchange and
Registration Rights Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by
a written instrument duly executed by the Company and the holders of at
least a majority in aggregate principal amount of the Registrable
Securities at the time outstanding and Xxxxxxx, Sachs & Co.; provided,
however, that any such amendment or waiver affecting solely provisions
of this Exchange and Registration Rights Agreement relating to the
Market Making Registration may be
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effected by a written instrument duly executed solely by the Company
and Xxxxxxx, Xxxxx & Co. Each holder of any Registrable Securities at
the time or thereafter outstanding shall be bound by any amendment or
waiver effected pursuant to this Section 9(h), whether or not any
notice, writing or marking indicating such amendment or waiver appears
on such Registrable Securities or is delivered to such holder.
(i) Inspection. For so long as this Exchange and
Registration Rights Agreement shall be in effect, this Exchange and
Registration Rights Agreement and a complete list of the names and
addresses of all the holders of Registrable Securities and the address
of Xxxxxxx, Sachs & Co. shall be made available upon reasonable notice
in writing for inspection and copying on any business day by Xxxxxxx,
Sachs & Co. or any holder of Registrable Securities for proper purposes
only (which shall include any purpose related to the rights of the
holders of Registrable Securities under the Securities, the Indenture
and this Exchange and Registration Rights Agreement) at the offices of
the Company at the address thereof set forth in Section 9(c) above or
at the office of the Trustee under the Indenture.
(j) Counterparts. This Exchange and Registration Rights
Agreement may be executed by the parties in counterparts, each of which
shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
32
33
If the foregoing is in accordance with your understanding,
please sign and return to us one for the Company and the Guarantors, one for
each of the Purchasers, and one for each counsel of such parties, counterparts
hereof, and upon the acceptance hereof by you, on behalf of each of the
Purchasers, this letter and such acceptance hereof shall constitute a binding
agreement between each of the Purchasers, the Guarantors and the Company. It is
understood that your acceptance of this letter on behalf of each of the
Purchasers is pursuant to the authority set forth in a form of Agreement among
Purchasers, the form of which shall be submitted to the Company for examination
upon request, but without warranty on your part as to the authority of the
signers thereof.
Very truly yours,
Carmike Cinemas, Inc.
By: /s/ X. Xxx Champion, III
-----------------------------------------
Name: X. Xxx Champion, III
Title: Senior Vice President/Secretary
Eastwynn Theatres, Inc.
By: /s/ X. Xxx Champion, III
-----------------------------------------
Name: X. Xxx Champion, III
Title: Senior Vice President/Secretary
Wooden Nickel Pub, Inc.
By: /s/ X. Xxx Champion, III
-----------------------------------------
Name: X. Xxx Champion, III
Title: Secretary
Accepted as of the date hereof:
Xxxxxxx, Sachs & Co.
First Union Capital Markets,
a division of Wheat First Securities
ING Baring Xxxxxx Xxxx LLC
By: /s/ Xxxxxxx, Sachs & Co.
-----------------------------------
(Xxxxxxx, Xxxxx & Co.)
Exchange and Registration Rights Agreement Signature Page
34
SCHEDULE I
GUARANTORS
1. Eastwynn Theatres, Inc.
2. Wooden Nickel Pub, Inc.
Schedule I-1
35
EXHIBIT A
CARMIKE CINEMAS, INC.
INSTRUCTION TO DTC PARTICIPANTS
(DATE OF MAILING)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [INSERT DATE] *
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the Carmike Cinemas, Inc. (the "Company")
9 3/8 % Senior Subordinated Notes due 2009 (the "Securities") are held.
The Company is in the process of registering the Securities under the Securities
Act of 1933, as amended for resale by the beneficial owners thereof. In order to
have their Securities included in the registration statement, beneficial owners
must complete and return the enclosed Notice of Registration Statement and
Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the
enclosed materials as soon as possible as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by _______________ [Insert Deadline For Response]. Please
forward a copy of the enclosed documents to each beneficial owner that holds
interests in the Securities through you. If you require more copies of the
enclosed materials or have any questions pertaining to this matter, please
contact Carmike Cinemas, Inc., 0000 Xxxxx Xxxxxx, X.X. Xxx 000, Xxxxxxxx,
Xxxxxxx 00000-0000, telephone (000) 000-0000.
--------
* Not less than 28 calendar days from date of mailing.
A-1
36
CARMIKE CINEMAS, INC.
NOTICE OF REGISTRATION STATEMENT
AND
SELLING SECURITYHOLDER QUESTIONNAIRE
(DATE)
Reference is hereby made to the Exchange and Registration Rights Agreement (the
"Exchange and Registration Rights Agreement") between Carmike Cinemas, Inc. (the
"Company") and the Purchasers named therein. Pursuant to the Exchange and
Registration Rights Agreement, the Company has filed with the United States
Securities and Exchange Commission (the "Commission") a registration statement
on Form __ (the "Shelf Registration Statement") for the registration and resale
under Rule 415 of the Securities Act of 1933, as amended (the "Securities Act"),
of the Company's 9 3/8 % Senior Subordinated Notes due 2009 (the "Securities").
A copy of the Exchange and Registration Rights Agreement is attached hereto. All
capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled
to have the Registrable Securities beneficially owned by it included in the
Shelf Registration Statement. In order to have Registrable Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("Notice and Questionnaire") must be
completed, executed and delivered to the Company's counsel at the address set
forth herein for receipt ON OR BEFORE _________________ [Insert Deadline for
Response]. Beneficial owners of Registrable Securities who do not complete,
execute and return this Notice and Questionnaire by such date (i) will not be
named as selling securityholders in the Shelf Registration Statement and (ii)
may not use the Prospectus forming a part thereof for resales of Registrable
Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
The term "Registrable Securities" is defined in the Exchange and Registration
Rights Agreement.
A-2
37
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Exchange and Registration Rights
Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and
as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
A-3
38
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as in
(a) above) of Registrable Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) Through Which Registrable Securities
Listed in Item (3) below are Held:
(2) Address for Notices to Selling Securityholder:
---------------------------------
---------------------------------
---------------------------------
Telephone:
---------------------------------
Fax:
---------------------------------
Contact Person:
---------------------------------
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned:
------------------------
CUSIP No(s). of such Registrable Securities:
------------------------------------------
(b) Principal amount of Securities other than Registrable
Securities beneficially owned:
--------------------------------------------------------
CUSIP No(s). of such other Securities:
------------------------------------------------
(c) Principal amount of Registrable Securities which the
undersigned wishes to be included in the Shelf Registration
Statement:
----------------------------------------------------------------------------
CUSIP No(s). of such Registrable Securities to be
included in the Shelf Registration Statement:
-----------------------------------------
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Securities listed above in
Item (3).
X-0
00
Xxxxx any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5%
or more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates)
during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item
(3) only as follows (if at all): Such Registrable Securities may be
sold from time to time directly by the undersigned Selling
Securityholder or, alternatively, through underwriters, broker-dealers
or agents. Such Registrable Securities may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time
of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which
may involve crosses or block transactions) (i) on any national
securities exchange or quotation service on which the Registered
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the Selling Securityholder may
enter into hedging transactions with broker-dealers, which may in turn
engage in short sales of the Registrable Securities in the course of
hedging the positions they assume. The Selling Securityholder may also
sell Registrable Securities short and deliver Registrable Securities to
close out such short positions, or loan or pledge Registrable
Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer
A-5
40
of its rights and obligations under this Notice and Questionnaire and the
Exchange and Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Exchange and Registration
Rights Agreement shall be made in writing, by hand-delivery, first-class mail,
or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
Carmike Cinemas, Inc.
0000 Xxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxx, Xxxxxxx 00000-0000
Attention: President
(ii) With a copy to:
Xxxxxxxx Xxxxxxx LLP
NationsBank Plaza
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxxx Xxxxxx
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above. This Exchange
and Registration Rights Agreement shall be governed in all respects by the laws
of the State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: _____________________
A-6
41
-----------------------------------------------------------------------
Selling Securityholder
(Print/type full legal name of beneficial owner of
Registrable Securities)
By:
--------------------------------------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE ___________ [Insert Deadline for Response] TO THE COMPANY'S COUNSEL
AT:
Xxxxxxxx Xxxxxxx LLP
NationsBank Plaza
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxxx Xxxxxx
A-7
42
EXHIBIT B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
The Bank of New York
Carmike Cinemas, Inc.
x/x Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx, 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Trust Officer
Re: Carmike Cinemas, Inc. (the "Company")
9 3/8 % Senior Subordinated Notes due 2009
Dear Sirs:
Please be advised that __________________ has transferred $_______________
aggregate principal amount of the above-referenced Notes pursuant to an
effective Registration Statement on Form (File No. 333- ) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder" in the Prospectus
dated __________ or in supplements thereto, and that the aggregate principal
amount of the Notes transferred are the Notes listed in such Prospectus opposite
such owner's name.
Dated:
Very truly yours,
-----------------------------------
(Name)
By:
-----------------------------------
(Authorized Signature)
B-1
