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EXHIBIT 4.4
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
Dated as of February 19, 1999
among
NEW WORLD PASTA COMPANY,
PASTA GROUP, L.L.C.,
WINCHESTER PASTA, L.L.C.
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
and
SCOTIA CAPITAL MARKETS (USA) INC.
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THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of February 19, 1999, among NEW WORLD PASTA COMPANY, a
Delaware corporation (the "Company"), PASTA GROUP, L.L.C., a Delaware limited
liability company, WINCHESTER PASTA, L.L.C., a Delaware limited liability
company (together with Pasta Group, L.L.C., the "Guarantors"), and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & CO. INCORPORATED and SCOTIA CAPITAL MARKETS (USA) INC. (together, the
"Placement Agents").
This Agreement is made pursuant to the Purchase Agreement
dated February 11, 1999, among the Company, the Guarantors and the Placement
Agents (the "Placement Agreement"), which provides for the sale by the Company
to the Placement Agents of an aggregate of $110,000,000 principal amount of the
Company's 9 1/4% Senior Subordinated Notes Due 2009 (the "Securities"). The
Securities are being issued pursuant to an Indenture, dated as of the date
hereof (the "Indenture"), among the Company, the Guarantors and The Bank of New
York, as Trustee. The Securities are being guaranteed (the "Guarantees") by the
Guarantors.
In order to induce the Placement Agent to enter into the
Placement Agreement, the Company and the Guarantors have agreed to provide to
the Placement Agents and their direct and indirect transferees the registration
rights set forth in this Agreement. The execution of this Agreement is a
condition to the closing under the Placement Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
Advice: See the last paragraph of Section 5 hereof.
Affiliate: An "affiliate" as such term is defined in Rule 405.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2(b) hereof.
Business Day: Any day that is not a Saturday, Sunday or a day
on which banking institutions in New York are authorized or required by law to
be closed.
Company: See the introductory paragraphs hereto.
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Effectiveness Date: The 180th day after the Issue Date;
provided, however, that with respect to any Shelf Registration, the
Effectiveness Date shall be the 90th day after the Filing Date with respect
thereto.
Effectiveness Period: See Section 3 hereof.
Event Date: See Section 4 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a) hereof.
Exchange Offer: See Section 2(a) hereof.
Exchange Offer Registration Statement: See Section 2(a)
hereof.
Filing Date: (A) With respect to an Exchange Offer
Registration Statement, the earlier of the date of the filing thereof with the
SEC and the 120th day after the Issue Date, and (B) in each other case (which
may be applicable notwithstanding the consummation of the Exchange Offer), the
45th day after the delivery (or, if earlier, the date of required delivery) of a
Shelf Notice; provided, however, that if a Shelf Notice is given or required to
be given within 10 days after the Filing Date of an Exchange Offer Registration
Statement, then the Filing Date with respect to the Initial Shelf Registration
shall be the 30th day after the delivery (or, if earlier, the date of required
delivery) of such Shelf Notice.
Guarantees: See the introductory paragraphs hereto.
Guarantors: See the introductory paragraphs hereto.
Holder: Any holder of a Security.
Indemnified Party: See Section 7(c) hereof.
Indemnifying Parties: See Section 7(c) hereof.
Indenture: See the introductory paragraphs hereto.
Information: See Section 5(n) hereof.
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Initial Shelf Registration: See Section 3(a) hereof.
Inspectors: See Section 5(n) hereof.
Issue Date: February 19, 1999, the date of original issuance
of the Notes.
Liquidated Damages: See Section 4 hereof.
NASD: See Section 5(s) hereof.
Notes: The Securities that were initially issued under the
Indenture.
Offering Memorandum: The final offering memorandum of the
Company dated February 11, 1999, in respect of the offering of the Securities.
Participating Broker-Dealer: See Section 2(b) hereof.
Person: An individual, trustee, corporation, partnership,
limited liability company, joint stock company, trust, unincorporated
association, union, business association, firm or other legal entity.
Placement Agents: See the introductory paragraphs hereto.
Placement Agreement: See the introductory paragraphs hereof.
Private Exchange: See Section 2(b) hereof.
Private Exchange Notes: See Section 2(b) hereof.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Records: See Section 5(n) hereof.
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Registrable Notes: Each Note upon its original issuance and at
all times subsequent thereto, each Exchange Note (and the related Guarantees) as
to which Section 2(c)(iv) hereof is applicable upon original issuance and at all
times subsequent thereto and each Private Exchange Note (and the related
Guarantees) upon original issuance thereof and at all times subsequent thereto,
until the earliest to occur of (i) a Registration Statement (other than, with
respect to any Exchange Note as to which Section 2(c)(iv) hereof is applicable,
the Exchange Offer Registration Statement) covering such Note, Exchange Note or
Private Exchange Note has been declared effective by the SEC and such Note,
Exchange Note or such Private Exchange Note (and the related Guarantees), as the
case may be, has been disposed of in accordance with such effective Registration
Statement, (ii) such Note has been exchanged pursuant to the Exchange Offer for
an Exchange Note or Exchange Notes (and the related Guarantees) that may be
resold without restriction under state and federal securities laws, (iii) such
Note, Exchange Note or Private Exchange Note (and the related Guarantees), as
the case may be, ceases to be outstanding for purposes of the Indenture, or (iv)
such Note, Exchange Note or Private Exchange Note (and the related Guarantees),
as the case may be, in the reasonable opinion of the Company, may be resold
without restriction pursuant to Rule 144(k) under the Securities Act.
Registration Default: See Section 4(c).
Registration Statement: Any registration statement of the
Company that covers any of the Notes, the Exchange Notes or the Private Exchange
Notes (and the related Guarantees) filed with the SEC under the Securities Act,
including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
Rule 144: Rule 144 under the Securities Act.
Rule 144A: Rule 144A under the Securities Act.
Rule 405: Rule 405 under the Securities Act.
Rule 415: Rule 415 under the Securities Act.
Rule 424: Rule 424 under the Securities Act.
SEC: The Securities and Exchange Commission.
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Securities: See the introductory paragraphs hereto.
"Securities" shall include all Notes, Exchange Notes and Private Exchange Notes.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2 hereof.
Shelf Registration: See Section 3(b) hereof.
Subsequent Shelf Registration: See Section 3(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and the trustee (if
any) under any indenture governing the Exchange Notes and Private Exchange Notes
(and the related Guarantees).
Underwritten registration or underwritten offering: A
registration in which securities of one or more of the Company are sold to an
underwriter for reoffering to the public.
Except as otherwise specifically provided, all references in
this Agreement to acts, laws, statutes, rules, regulations, releases. forms,
no-action letters and other regulatory requirements (collectively, "Regulatory
Requirements") shall be deemed to refer also to any amendments thereto and all
subsequent Regulatory Requirements adopted as a replacement thereto having
substantially the same effect therewith.
2. Exchange Offer
(a) The Company and the Guarantors shall file with the SEC, no
later than the Filing Date, a Registration Statement (the "Exchange Offer
Registration Statement") on an appropriate registration form with respect to a
registered offer (the "Exchange Offer") to exchange any and all of the
Registrable Notes for a like aggregate principal amount of notes of the Company,
guaranteed by the Guarantors (on substantially the same terms as the
Guarantees), that are identical in all material respects to the Securities,
except that the Exchange Notes shall contain no restrictive legend thereon (the
"Exchange Notes"), and which are entitled to the benefits of the Indenture or a
trust indenture which is identical in all material respects
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to the Indenture (other than such changes to the Indenture or any such identical
trust indenture as are necessary to comply with the TIA) and which, in either
case, has been qualified under the TIA. The Exchange Offer shall comply with all
applicable tender offer rules and regulations under the Exchange Act and other
applicable law. The Company and the Guarantors shall use their reasonable best
efforts to (x) cause the Exchange Offer Registration Statement to be declared
effective under the Securities Act on or before the Effectiveness Date, (y) keep
the Exchange Offer open for at least 20 Business Days (or longer if required by
applicable law) after the date that notice of the Exchange Offer is mailed to
Holders; and (z) consummate the Exchange Offer on or prior to the 35th day
following the date on which the Exchange Offer Registration Statement is
declared effective by the SEC. If, after the Exchange Offer Registration
Statement is initially declared effective by the SEC, the Exchange Offer or the
issuance of the Exchange Notes thereunder is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental
agency or court, the Exchange Offer Registration Statement shall be deemed not
to have become effective for purposes of this Agreement, unless such
interference is cured within five Business Days.
Each Holder (including, without limitation, each Participating
Broker-Dealer (as defined)) who participates in the Exchange Offer will be
required to represent to the Company, in writing (which may be contained in the
applicable letter of transmittal) that: (i) any Exchange Notes acquired in
exchange for Registrable Notes tendered is being acquired in the ordinary course
of business of the Person receiving such Exchange Notes, whether or not such
recipient is such Holder itself, (ii) at the time of the commencement of the
Exchange Offer, neither such Holder nor, to the actual knowledge of such Holder,
any other Person receiving Exchange Notes from such Holder has an arrangement or
understanding with any Person to participate in the distribution of the
Exchange Notes in violation of the provisions of the Securities Act, (iii) the
Holder is not an affiliate of the Company, (iv) if such Holder is not a
Participating Broker-Dealer, that it has not engaged in, and does not intend to
engage in, the distribution of Exchange Notes, and (v) if such Holder is a
Participating Broker-Dealer, such Holder acquired the Registrable Notes as a
result of market-making activities or other trading activities and that it will
comply with the applicable provisions of the Securities Act with respect to
resale of any Exchange Notes.
Upon consummation of the Exchange Offer in accordance with
this Section 2, the provisions of this Agreement shall continue to apply,
mutatis mutandis, solely with respect to Registrable Notes that are Private
Exchange Notes, Exchange Notes as to which Section 2(c)(iv) hereof is applicable
and Exchange Notes held by Participating Broker-Dealers, and the Company shall
have no further
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obligation to register Registrable Notes (other than Private Exchange Notes and
Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3
hereof.
(b) The Company shall include within the Prospectus contained
in the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Placement Agents, which shall
contain a summary statement of the positions taken or policies made by the staff
of the SEC with respect to the potential "underwriter" status of any
broker-dealer that is the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange
Offer (a "Participating Broker-Dealer"), and whether such positions or policies
have been publicly disseminated by the staff of the SEC or such positions or
policies represent the prevailing views of the staff of the SEC. Such "Plan of
Distribution" section shall also expressly permit, to the extent permitted by
applicable policies and regulations of the SEC, the use of the Prospectus by all
Persons subject to the prospectus delivery requirements of the Securities Act,
including, to the extent permitted by applicable policies and regulations of
the SEC, all Participating Broker-Dealers, and include a statement describing
the means by which Participating Broker-Dealers may resell the Exchange Notes in
compliance with the Securities Act.
In accordance with Section 5 hereof, the Company and the
Guarantors shall use their reasonable best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the Prospectus
contained therein in order to permit such Prospectus to be lawfully delivered by
all Persons subject to the prospectus delivery requirements of the Securities
Act during the period required by the Securities Act for use in connection with
any resale of Exchange Notes; provided that such period shall not be less than
90 nor more than 270 days after such Exchange Offer Registration Statement is
declared effective (or such longer period if extended pursuant to the last
paragraph of Section 5 hereof) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, any Placement
Agent holds any Notes acquired by it that have, or that are reasonably likely to
be determined to have, the status of an unsold allotment in an initial
distribution, or any Holder is not entitled to participate in the Exchange
Offer, the Company, upon the request of any such Holder, shall simultaneously
with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver
to any such Holder, in exchange (the "Private Exchange") for such Notes held by
any such Holder, a like principal amount of notes (the "Private Exchange Notes")
of the Company, guaranteed by the Guaran-
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tors (on substantially similar terms as the Guarantees), that are identical in
all material respects to the Exchange Notes except for the placement of a
restrictive legend on such Private Exchange Notes. The Private Exchange Notes
shall be issued pursuant to the same indenture as the Exchange Notes and bear
the same CUSIP number as the Exchange Notes. All of the Securities shall vote
and consent together on all matters as one class, and none of the Notes, the
Exchange Notes or the Private Exchange Notes will have the right to vote or
consent as a separate class on any matter.
In connection with the Exchange Offer, the Company shall:
(i) mail, or cause to be mailed, to each Holder
of record entitled to participate in the Exchange Offer a copy of the
Prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related
documents;
(ii) utilize the services of a depositary for
the Exchange Offer with an address in the Borough of Manhattan, The
City of New York;
(iii) permit Holders to withdraw tendered
Registrable Notes at any time prior to the close of business, New York
time, on the last Business Day on which the Exchange Offer remains
open; and
(iv) otherwise comply in all material respects
with all applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer
and the Private Exchange, if any, the Company shall:
(i) accept for exchange all Registrable Notes
validly tendered and not validly withdrawn pursuant to the Exchange
Offer and the Private Exchange, if any;
(ii) deliver to the Trustee for cancellation all
Registrable Notes so accepted for exchange; and
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(iii) cause the Trustee to authenticate and
deliver promptly to each Holder of Registrable Notes tendered for
exchange, Exchange Notes or Private Exchange Notes, as the case may be,
equal in principal amount to the Registrable Notes of such Holder so
accepted for exchange; provided, that in the case of any Registrable
Notes held in global form by a depositary, authentication and delivery
to such depositary of one or more Exchange Notes in global form in an
equivalent principal amount thereto for the account of such Holders in
accordance with the Indenture (or the indenture described in Section
2(a) hereof) shall satisfy such authentication and delivery
requirement.
The Exchange Offer and the Private Exchange shall not be
subject to any conditions, other than that (i) the Exchange Offer or Private
Exchange, as the case may be, does not violate applicable law or any applicable
interpretation of the staff of the SEC, (ii) no action or proceeding shall have
been instituted or threatened in any court or by any governmental agency which
might materially impair the ability of the Company to proceed with the Exchange
Offer or the Private Exchange, and no material adverse development shall have
occurred in any existing action or proceeding with respect to the Company, (iii)
all governmental approvals shall have been obtained, which approvals the Company
deems necessary for the consummation of the Exchange Offer or Private Exchange,
and (iv) the conditions precedent to the Company's obligations under this
Agreement shall have been fulfilled.
(c) If (i) because of any change in law or in
currently prevailing interpretations of the staff of the SEC, the Company is not
permitted to effect the Exchange Offer, (ii) the Exchange Offer is not
consummated on or prior to the 210th day after the Issue Date, (iii) any holder
of Private Exchange Notes so requests in writing to the Company, on or prior to
the 60th day after the consummation of the Exchange Offer, or (iv) in the case
of any Holder that participates in the Exchange Offer, such Holder does not
receive Exchange Notes on the date of the exchange that may be sold without
restriction under state and federal securities laws (other than due solely to
the status of such Holder as an affiliate of the Company) and such Holder so
requests by written notice to the Company on or prior to the 60th day after the
consummation of the Exchange Offer, then in the case of each of clauses (i) to
and including (iv) of this sentence, the Company shall promptly (and in any
event within 20 days after the occurrence of any of the events described in such
clauses (i) to and including (iv)) deliver to the Holders and the Trustee
written notice thereof (the "Shelf Notice") and the Company and the Guarantors
shall file a Shelf Registration pursuant to Section 3 hereof.
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3. Shelf Registration
If at any time a Shelf Notice is delivered or required to be
delivered as contemplated by Section 2(c) hereof, then:
(a) Initial Shelf Registration. The Company and the
Guarantors shall file with the SEC a Registration Statement for an offering to
be made on a continuous basis pursuant to Rule 415 covering all of the
Registrable Notes not exchanged in the Exchange Offer, Private Exchange Notes
and Exchange Notes as to which Section 2(c)(iv) is applicable (the "Initial
Shelf Registration"). The Company and the Guarantors shall use their reasonable
best efforts to file with the SEC the Initial Shelf Registration on or before
the applicable Filing Date. The Initial Shelf Registration shall be on Form S-1
or another appropriate form permitting registration of such Registrable Notes
for resale by Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The Company shall not
permit any securities other than the Registrable Notes to be included in the
Initial Shelf Registration or any Subsequent Shelf Registration (as defined
below).
In accordance with Section 5 hereof, the Company and the
Guarantors shall use their reasonable best efforts to cause the Initial Shelf
Registration to be declared effective under the Securities Act on or prior to
the Effectiveness Date and to keep the Initial Shelf Registration continuously
effective under the Securities Act until the date which is two years from the
later of Issue Date and the date which is two years after the date on which any
affiliate of the Company ceased to hold Registrable Notes (the "Effectiveness
Period"), or such shorter period ending on the earliest to occur of (i) all
Registrable Notes covered by the Initial Shelf Registration being sold in the
manner set forth and as contemplated in the Initial Shelf Registration, (ii) a
Subsequent Shelf Registration covering all of the Registrable Notes covered by
and not sold under the Initial Shelf Registration or an earlier Subsequent Shelf
Registration being declared effective under the Securities Act, or (iii) the
date on which, in the written opinion of counsel to the Company, all outstanding
Registrable Notes held by Persons that are not affiliates of the Company may be
resold without registration under the Securities Act pursuant to Rule 144(k)
under the Securities Act.
(b) Subsequent Shelf Registrations. If the Initial
Shelf Registration or any Subsequent Shelf Registration ceases to be effective
for any reason at any time during the Effectiveness Period (other than because
of the sale of all of the Registrable Notes registered thereunder), the Company
and the Guarantors shall use
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their reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 45 days of
such cessation of effectiveness amend the Initial Shelf Registration in a manner
to obtain the withdrawal of the order suspending the effectiveness thereof, or
file an additional "shelf" Registration Statement pursuant to Rule 415 covering
all of the Registrable Notes covered by and not sold under the Initial Shelf
Registration or an earlier Subsequent Shelf Registration (each, a "Subsequent
Shelf Registration"). If a Subsequent Shelf Registration is filed, the Company
and the Guarantors shall use their reasonable best efforts to cause the
Subsequent Shelf Registration to be declared effective under the Securities Act
as soon as practicable after such filing and to keep such subsequent Shelf
Registration continuously effective for a period equal to the number of days in
the Effectiveness Period less the aggregate number of days during which the
Initial Shelf Registration or any Subsequent Shelf Registration was previously
continuously effective. As used herein the term "Shelf Registration" means the
Initial Shelf Registration and any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Company shall
promptly supplement and amend any Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration, if required by the Securities Act or if reasonably requested
by the Holders of a majority in aggregate principal amount of the Registrable
Notes covered by such Registration Statement or by any underwriter of such
Registrable Notes.
(d) Provision by Holders of Certain Information in
Connection with the Shelf Registration. No Holder of Registrable Notes may
include any of its Registrable Notes in any Shelf Registration unless and until
such Holder furnishes to the Company, in writing within 30 days after receipt of
a request therefor, the information specified in Items 507 and 508 (as
applicable) of Regulation S-K under the Securities Act and any other applicable
rules, regulations or policies of the SEC for use in connection with any Shelf
Registration or Prospectus included therein, on a form to be provided by the
Company. No Holder of Registrable Notes shall be entitled to Liquidated Damages
pursuant to Section 4 hereof unless and until such Holder shall have provided
all such information. Each selling Holder agrees to furnish promptly to the
Company additional information to be disclosed so that the information
previously furnished to the Company by such Holder does not contain any 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.
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4. Liquidated Damages
(a) The Company, the Guarantors and the Placement
Agents agree that the Holders will suffer damages if the Company or any
Guarantor fails to fulfill its obligations under Section 2 or Section 3 hereof
and that it would not be feasible to ascertain the extent of such damages with
precision. Accordingly, the Company and the Guarantors, jointly and severally,
agree to pay, as liquidated damages and as the sole and exclusive remedy of the
Holders should the Company or any Guarantor fail to fulfill its obligations
under Section 2 or Section 3 hereof, additional interest on the Securities
("Liquidated Damages") under the circumstances and to the extent set forth below
(each of which shall be given independent effect):
(i) if (A) neither the Exchange Offer
Registration Statement nor the Initial Shelf Registration has been
filed on or prior to the 120th day after the Issue Date or (B)
notwithstanding that the Company has consummated or will consummate the
Exchange Offer, the Company is required to file a Shelf Registration
and such Shelf Registration is not filed on or prior to the Filing Date
applicable thereto, then, commencing on the day after any such Filing
Date, Liquidated Damages shall accrue on the principal amount of the
Securities at a rate of 0.50% per annum for the first 90 days
immediately following each such Filing Date, and such Liquidated
Damages rate shall increase by an additional 0.50% per annum at the
beginning of each subsequent 90-day period, or
(ii) if (A) neither the Exchange Offer
Registration Statement nor the Initial Shelf Registration is declared
effective by the SEC on or prior to the 180th day after the Issue Date
or (B) notwithstanding that the Company has consummated or will
consummate the Exchange Offer, the Company is required to file a Shelf
Registration and such Shelf Registration is not declared effective by
the SEC on or prior to the Effectiveness Date in respect of such Shelf
Registration, then, commencing on the day after such Effectiveness
Date, Liquidated Damages shall accrue on the principal amount of the
Securities at a rate of 0.50% per annum for the first 90 days
immediately following the day after such Effectiveness Date, and such
Liquidated Damages rate shall increase by an additional 0.50% per
annum at the beginning of each subsequent 90-day period, or
(iii) if (A) the Company has not exchanged
Exchange Notes for all Securities validly tendered in accordance with
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the terms of the Exchange Offer on or prior to the 35th day after the
date on which the Exchange Offer Registration Statement relating
thereto was declared effective or (B) if applicable, a Shelf
Registration has been declared effective and such Shelf Registration
ceases to be effective at any time during the Effectiveness Period,
then Liquidated Damages shall accrue on the principal amount of the
Securities at a rate of 0.50% per annum for the first 90 days
commencing on (x) the 36th day after such effective date, in the case
of (A) above, or (y) the day such Shelf Registration ceases to be
effective in the case of (B) above, and such Liquidated Damages rate
shall increase by an additional 0.50% per annum at the beginning of
each such subsequent 90-day period;
provided, however, that the Liquidated Damages rate on the Securities may not
exceed at any one time in the aggregate 1.00% per annum; provided, further,
however, that (1) upon the filing of the applicable Exchange Offer Registration
Statement or the applicable Shelf Registration as required hereunder (in the
case of clause (i) above of this Section 4(a)), (2) upon the effectiveness of
the Exchange Offer Registration Statement or the applicable Shelf Registration
as required hereunder (in the case of clause (ii) of this Section 4(a)), or (3)
upon the exchange of the applicable Exchange Notes for all Securities validly
tendered (in the case of clause (iii)(A) of this Section 4(a)), or upon the
effectiveness of the applicable Shelf Registration which had ceased to remain
effective (in the case of clause (iii)(B) of this Section 4(a)), Liquidated
Damages on the Notes in respect of which such events relate as a result of such
clause (or the relevant subclause thereof), as the case may be, shall cease to
accrue.
(b) Notification of Trustee. The Company shall notify
the Trustee within three Business Days after each and every date on which an
event occurs in respect of which Liquidated Damages are required to be paid (an
"Event Date"). Any amounts of Liquidated Damages due pursuant to (a)(i), (a)(ii)
or (a)(iii) of this Section 4 will be payable in cash on the dates, and to the
Persons, to whom interest on the Securities is payable. The amount of Liquidated
Damages will be determined by multiplying the applicable Liquidated Damages rate
by the principal amount of the outstanding Securities, multiplied by a fraction,
the numerator of which is the number of days such Liquidated Damages rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
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(c) Suspension of Liquidated Damages for Good Cause.
Liquidated Damages shall not accrue with respect to an event listed in Sections
4(a)(i)(B), (ii)(B) and (iii)(B) hereof (each, a "Registration Default") if: (i)
such Registration Default under Section 4(a)(iii)(B) hereof occurs because of
the filing of a post-effective amendment to such Registration Statement to
incorporate annual audited financial information with respect to the Company
where such post-effective amendment is not yet effective and needs to be
declared effective to permit Holders to use the related Prospectus, (ii) such
Registration Default occurs because of the occurrence of other material events
or developments with respect to the Company that would need to be described in
such Registration Statement or the related Prospectus, and the effectiveness of
such Registration Statement is reasonably required to be suspended while such
Registration Statement and related Prospectus are amended or supplemented to
reflect such events or developments, (iii) such Registration Default results
from the suspension of the effectiveness of such Registration Statement because
of the existence of material events or developments with respect to the Company
or any of its affiliates, the disclosure of which the Company determines in good
faith would have a material adverse effect on the business, operations or
prospects of the Company, or (iv) such Registration Default results from the
suspension of the effectiveness of such Registration Statement because the
Company does not wish to disclose publicly a pending material business
transaction that has not yet been publicly disclosed; provided, however, that if
any, such Registration Default exists and continues on more than an aggregate
of 75 days in any calendar year, Liquidated Damages shall accrue and be payable
in accordance with Sections 4(a) and 4(b) hereof from the 61st day on which any
such Registration Default exists, and they shall continue to accrue until the
date on which such Registration Default is cured.
5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Section 2 or 3 hereof, the Company and the Guarantors shall effect
such registrations to permit the sale of the Securities covered thereby in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto and in connection with any Registration Statement filed by the
Company and the Guarantors hereunder, the Company and the Guarantors shall:
(a) Prepare and file with the SEC prior to the
applicable Filing Date, a Registration Statement or Registration Statements as
required by Section 2 or 3 hereof, and use their reasonable best efforts to
cause each such Registration
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Statement to become effective and remain effective as provided herein; provided,
however, that, if
(i) such filing is pursuant to Section 3
hereof, or
(ii) a Prospectus contained in the Exchange
Offer Registration Statement filed pursuant to Section 2 hereof is
required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period relating thereto and from whom the Company has received written
notice that it will be a Participating Broker-Dealer in the Exchange
Offer, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Company shall furnish to and
afford the Holders of the Registrable Notes included in such
Registration Statement (with respect to a Registration Statement filed
pursuant to Section 3 hereof) or each such Participating Broker-Dealer
(with respect to any such Registration Statement), as the case may be,
their counsel and the managing underwriter or underwriters, if any, a
reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed (in each case at
least five days prior to such filing, or such later date as is
reasonable under the circumstances). The Company and the Guarantors
shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto if the Holders of a majority in
aggregate principal amount of the Registrable Notes included in such
Registration Statement, or any such Participating Broker-Dealer, as the
case may be, their counsel, or the managing underwriter or
underwriters, if any, shall reasonably object on a timely basis, except
for any Registration Statement or amendment thereto or related
Prospectus or supplement thereto (a copy of which has been previously
furnished as provided in the preceding sentence) which counsel to the
Company has advised the Company in writing is required to be filed in
order to comply with applicable law.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or Exchange Offer
Registration Statement, as the case may be, as may be necessary to keep such
Shelf Registration or Exchange Offer Registration Statement continuously
effective for the Effectiveness Period or the Applicable Period, respectively,
and in any case, except for such
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periods as to which Liquidated Damages do not accrue pursuant to Section 4(c)
hereof, cause the related Prospectus to be supplemented by any Prospectus
supplement required by applicable law, and as so supplemented to be filed
pursuant to Rule 424; and comply with the provisions of the Securities Act and
the Exchange Act applicable to each of them with respect to the disposition of
all Securities covered by such Registration Statement as so amended or in such
Prospectus as so supplemented and with respect to the subsequent resale of any
securities being sold by a Participating Broker-Dealer covered by any such
Prospectus. The Company and the Guarantors shall be deemed not to have used
their reasonable best efforts to keep a Registration Statement effective during
the Effectiveness Period or the Applicable Period, as the case may be, relating
thereto if the Company or any Guarantor voluntarily takes any action that would
result in selling Holders of the Registrable Notes covered thereby or
Participating Broker-Dealers seeking to sell Exchange Notes not being able to
sell such Registrable Notes or such Exchange Notes during that period unless
such action is required by applicable law or permitted by this Agreement.
(c) If
(i) a Shelf Registration is filed pursuant to
Section 3 hereof, or
(ii) a Prospectus contained in the Exchange
Offer Registration Statement filed pursuant to Section 2 hereof is
required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period relating thereto from whom the Company has received written
notice that it will be a Participating Broker-Dealer in the Exchange
Offer,
notify the selling Holders of Registrable Notes (with respect to a Shelf
Registration filed pursuant to Section 3 hereof), or each such Participating
Broker-Dealer (with respect to any such Registration Statement), as the case may
be, their counsel and the managing underwriter or underwriters, if any, promptly
(but in any event within one day), and confirm such notice in writing, (i) when
a Prospectus or any Prospectus supplement or post-effective amendment has been
filed and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act
(including in such notice a written statement that any Holder may, upon request,
obtain, at the sole expense of the Company, one conformed copy of such
Registration Statement or post-effective amendment including financial
statements and schedules thereto, documents incorporated or
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18
deemed to be incorporated therein by reference and exhibits thereto), (ii) of
the issuance by the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of any
Prospectus or preliminary Prospectus or the initiation of any proceedings for
that purpose, (iii) if at any time when a Prospectus is required by the
Securities Act to be delivered in connection with sales of the Registrable Notes
or resales of Exchange Notes by Participating Broker-Dealers the representations
and warranties of the Company contained in any agreement (including any
underwriting agreement) contemplated by Section 5(m) hereof cease to be true and
correct in all material respects, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of a Registration Statement or any of the Registrable Notes
or the Exchange Notes to be sold by any Participating Broker-Dealer for offer or
sale in any jurisdiction, or the initiation or threatening of any proceeding for
such purpose, (v) of the happening of any event, the existence of any condition
or any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in or amendments or supplements to such
Registration Statement, Prospectus or documents so that in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case
of the Prospectus, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and (vi) of the Company's determination that a
post-effective amendment to a Registration Statement would be necessary or
appropriate; except, in the case of clauses (iii), (iv), (v) and (vi), with
respect to any event, development or transaction permitted to be kept
confidential without the accrual of Liquidated Damages under Section 4(c)(iii)
hereof, the Company shall not be required to describe such event, development or
transaction in the written notice provided.
(d) If
(i) a Shelf Registration is filed pursuant to
Section 3 hereof, or
(ii) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-
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Dealer who seeks to sell Exchange Notes during the Applicable Period,
use their reasonable best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification) of any of the Registrable Notes or the
Exchange Notes to be sold by any Participating Broker-Dealer, for sale in any
jurisdiction, and, if any such order is issued, to use their reasonable best
efforts to obtain the withdrawal of any such order at the earliest practicable
moment.
(e) If a Shelf Registration is filed pursuant to
Section 3 and if requested during the Effectiveness Period by the managing
underwriter or underwriters (if any), the Holders of a majority in aggregate
principal amount of the Registrable Notes being sold in connection with an
underwritten offering or any Participating Broker-Dealer, (i) as promptly as
practicable incorporate in a Prospectus supplement or post-effective amendment
such information as the managing underwriter or underwriters (if any), such
Holders, any Participating Broker-Dealer or counsel for any of them reasonably
request to be included therein and (ii) make all required filings of such
Prospectus supplement or such post-effective amendment as soon as practicable
after the Company has received notification of the matters to be incorporated in
such prospectus supplement or post-effective amendment.
(f) If
(i) a Shelf Registration is filed pursuant to
Section 3 hereof, or
(ii) a Prospectus contained in the Exchange
Offer Registration Statement filed pursuant to Section 2 hereof is
required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period,
furnish to each selling Holder of Registrable Notes (with respect to a Shelf
Registration filed pursuant to Section 3 hereof) and to each such Participating
Broker-Dealer who so requests (with respect to any such Registration Statement)
and to their respective counsel and each managing underwriter (if any) at the
sole expense of the Company, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto, including
financial state-
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20
ments and schedules thereto, and, if requested, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits thereto.
(g) If
(i) a Shelf Registration is filed pursuant to
Section 3 hereof, or
(ii) a Prospectus contained in the Exchange
Offer Registration Statement filed pursuant to Section 2 hereof is
required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period,
deliver to each selling Holder of Registrable Notes (with respect to a Shelf
Registration filed pursuant to Section 3 hereof), or each such Participating
Broker-Dealer (with respect to any such Registration Statement), as the case may
be, their respective counsel, and the underwriters, if any, at the sole expense
of the Company, as many copies of the Prospectus or Prospectuses (including each
form of preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated therein by reference as such Persons may reasonably
request; and, subject to the last paragraph of this Section 5, the Company and
the Guarantors hereby consent to the use of such Prospectus and each amendment
or supplement thereto by each of the selling Holders of Registrable Notes or
each such Participating Broker-Dealer, as the case may be, and the underwriters
or agents, if any, and dealers (if any), in connection with the offering and
sale of the Registrable Notes covered by, or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to, such Prospectus and any
amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes
or any delivery of a Prospectus contained in the Exchange Offer Registration
Statement by any Participating Broker-Dealer who seeks to sell Securities during
the Applicable Period, use their reasonable best efforts to register or qualify,
and to cooperate with the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, the managing underwriter or
underwriters (if any) and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions within the United States as any selling
Holder, Participating Broker-Dealer or the managing underwriter or under writers
(if any) reasonably request in writing; provided, however, that where Securi-
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21
ties held by Participating Broker-Dealers or Registrable Notes are offered other
than through an underwritten offering, the Company agrees to cause its counsel
to perform Blue Sky investigations, and the Company and the Guarantors agree to
file registrations and qualifications required to be filed pursuant to this
Section 5(h), keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is required
to be kept effective and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions of the
Securities held by Participating Broker-Dealers or the Registrable Notes covered
by the applicable Registration Statement; provided, further, that none of the
Company or any Guarantor shall be required to (A) qualify generally to do
business in any jurisdiction where it is not then so qualified, (B) take any
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject, or (C) subject itself to taxation
in excess of a nominal dollar amount in any such jurisdiction where it is not
then so subject.
(i) If a Shelf Registration is filed pursuant to
Section 3 hereof, cooperate with the selling Holders of Registrable Notes and
the managing under writer or underwriters (if any) to facilitate the timely
preparation and delivery of certificates representing Registrable Notes to be
sold, which certificates shall not bear any restrictive legends and shall be in
a form eligible for deposit with The Depository Trust Company; and enable such
Registrable Notes to be in such denominations (subject to applicable
requirements contained in the Indenture or the indenture under which the
Registrable Notes were issued) and registered in such names as the managing
underwriter or underwriters (if any) or Holders may request.
(j) Subject to the last proviso in (h) above, use their
reasonable best efforts to cause the Registrable Notes covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be reasonably necessary to enable
the seller or sellers thereof or the underwriter or underwriters, if any, to
consummate the disposition of such Registrable Notes, except as may be required
solely as a consequence of the nature of such selling Holder's business, in
which case the Company will cooperate in all reasonable respects with the filing
of such Registration Statement and the granting of such approvals.
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(k) If
(i) a Shelf Registration is filed pursuant to
Section 3 hereof, or
(ii) a Prospectus contained in the Exchange
Offer Registration Statement filed pursuant to Section 2 hereof is
required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period,
upon the occurrence of any event contemplated by paragraph 5(c)(v) or 5(c)(vi)
hereof (except with respect to any event, development or transaction permitted
to be kept confidential without the accrual of Liquidated Damages under Section
4(c)(iii) hereof for the period during which such Liquidated Damages do not
accrue), as promptly as practicable prepare and (subject to Section 5(a) hereof)
file with the SEC at the sole expense of the Company, a supplement or
post-effective amendment to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes being sold thereunder (with
respect to a Shelf Registration filed pursuant to Section 3 hereof) or to the
purchasers of the Exchange Notes to whom such Prospectus will be delivered by a
Participating Broker-Dealer (with respect to any such Registration Statement),
any such Prospectus will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. Notwithstanding the foregoing, the Company shall not be
required to amend or supplement a Registration Statement, any related Prospectus
or any document incorporated or deemed to be incorporated therein by reference
in the event that, and for a period not to exceed an aggregate of 60 days in any
calendar year if (i) an event occurs and is continuing as a result of which the
Shelf Registration, any related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, would, in the Company's good
faith judgment, contain an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein not misleading
(with respect to such a Prospectus only, in the light of the circumstances under
which they were made), and (ii) (a) the Company determines in its good faith
judgment that the disclosure of such event at such time would have a material
adverse effect on the business, operations or prospects of the Company, or (b)
the disclosure otherwise
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23
relates to a pending material business transaction that has not yet been
publicly disclosed.
(l) Prior to the effective date of the first
Registration Statement relating to the Securities, (i) provide the Trustee with
certificates for the Exchange Notes and the Private Exchange Notes in a form
eligible for deposit with The Depository Trust Company and (ii) provide a CUSIP
number for the Exchange Notes and the Private Exchange Notes.
(m) In connection with any underwritten offering of
Registrable Notes pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of debt securities similar
to the Securities in form and substance reasonably satisfactory to the Company,
and take all such other actions as are reasonably requested by the managing
underwriter or underwriters (if any) in order to expedite or facilitate the
registration or the disposition of such Registrable Notes, and in such
connection (i) make such representations and warranties to, and covenants with,
the underwriters with respect to the business of the Company and the
subsidiaries of the Company (including any acquired business, properties or
entity, if applicable), and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated therein by
reference, in each case, as are customarily made by issuers to underwriters in
underwritten offerings of debt securities similar to the Securities, and confirm
the same in writing if and when requested in form and substance reasonably
satisfactory to the underwriters; (ii) obtain the written opinions of counsel
to the Company and written updates thereof in form, scope and substance
reasonably satisfactory to the underwriters, addressed to the underwriters
covering the matters customarily covered in opinions reasonably requested in
underwritten offerings and such other matters as may be reasonably requested by
the managing underwriter or underwriters; (iii) obtain "cold comfort" letters
and updates thereof in form, scope and substance reasonably satisfactory to the
underwriters from the independent public accountants of the Company (and, if
necessary, any other independent public accountants of the Company, any
subsidiary of the Company or of any business acquired by the Company, for which
financial statements and financial data are, or are required to be, included or
incorporated by reference in the Registration Statement), addressed to each of
the underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with under
written offerings of debt securities similar to the Securities and such other
matters as reasonably requested by the underwriters as permitted by the
Statement on Auditing Standards No. 72; and (iv) if an underwriting agreement is
entered into, include in such underwriting agreement indemnification provisions
and procedures no less
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24
favorable to the sellers and underwriters, if any, than those set forth in
Section 7 hereof (or such other provisions and procedures acceptable to Holders
of a majority in aggregate principal amount of Registrable Notes covered by such
Registration Statement and the underwriters (if any). The above shall be done at
each closing under such underwriting agreement, or as and to the extent required
thereunder.
(n) If
(i) a Shelf Registration is filed pursuant to
Section 3 hereof, or
(ii) a Prospectus contained in the Exchange
Offer Registration Statement filed pursuant to Section 2 hereof is
required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period,
make available for inspection by any selling Holder of such Registrable Notes
being sold (with respect to a Shelf Registration filed pursuant to Section 3
hereof), or each such Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of Registrable Notes, if any,
and any attorney, accountant or other agent retained by any such selling Holder
or each such Participating Broker-Dealer (with respect to any such Registration
Statement), as the case may be, or underwriter (collectively, the "Inspectors"),
upon written request, at the offices where normally kept, during reasonable
business hours, all pertinent financial and other records, pertinent corporate
documents and pertinent instruments of the Company and subsidiaries of the
Company (collectively, the "Records"), as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities, and cause
the officers, directors and employees of the Company and any of its subsidiaries
to supply all information ("Information") reasonably requested by any such
Inspector in connection with such due diligence responsibilities. Each Inspector
shall agree in writing that it will keep the Records and Information
confidential and that it will not disclose any of the Records that the Company
determines, in good faith, to be confidential and notifies the Inspectors in
writing are confidential unless (i) the disclosure of such Records or
Information is necessary to avoid or correct a material misstatement or material
omission in such Registration Statement or Prospectus, (ii) the release of such
Records or Information is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction, or (iii) the information in such Records or
Information has been made generally available to the public other than by an
Inspector or an affiliate of an Inspector; provided, however, that
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25
prior notice shall be provided as soon as practicable to the Company of the
potential disclosure of any information by such Inspector pursuant to clauses
(i) or (ii) of this sentence in order to permit the Company to obtain a
protective order (or waive the provisions of this paragraph (n)).
(o) Provide a Trustee for the Exchange Notes and the
Private Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof, as the case may be, to be
qualified under the TIA not later than the effective date of the first
Registration Statement relating to the Exchange Notes; and in connection
therewith, cooperate with the trustee under any such indenture and the Holders
of the Securities, to effect such changes (if any) to such indenture as may be
required for such indenture to be so qualified in accordance with the terms of
the TIA; and execute, and use their reasonable best efforts to cause such
trustee to execute, all documents as may be required to effect such changes, and
all other forms and documents required to be filed with the SEC to enable such
indenture to be so qualified in a timely manner.
(p) Comply with all applicable rules and regulations of
the SEC and make generally available to its securityholders with regard to any
applicable Registration Statement, a consolidated earnings statement satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than 45 days
after the end of any fiscal quarter (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Notes are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold to underwriters in
such an offering, commencing on the first day of the first fiscal quarter of the
Company, after the effective date of a Registration Statement, which statements
shall cover said 12-month periods.
(q) Upon consummation of the Exchange Offer or a
Private Exchange, obtain an opinion or opinions of counsel to the Company and
the Guarantors, in a form customary for underwritten transactions, addressed to
the Trustee for the benefit of all Holders of Securities participating in the
Exchange Offer or the Private Exchange, as the case may be, that the Exchange
Notes or Private Exchange Notes, as the case may be, the related Guarantees and
the relevant indenture constitute legal, valid and binding obligations of the
Company and/or the Guarantors, as applicable, enforceable against each of them
in accordance with their respective terms, subject to customary exceptions and
qualifications.
(r) If the Exchange Offer or a Private Exchange is to
be consummated, upon delivery of the Registrable Notes by Holders to the Company
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26
(or to such other Person as directed by the Company), in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be, the Company
shall ▇▇▇▇, or cause to be marked, on such Registrable Notes that such
Registrable Notes are being canceled in exchange for the Exchange Notes or the
Private Exchange Notes, as the case may be; in no event shall such Registrable
Notes be marked as paid or otherwise satisfied.
(s) Cooperate with each seller of Registrable Notes
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Notes and their respective
counsel in connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
(t) Use their reasonable best efforts to take all other
steps reasonably necessary to effect the registration of the Exchange Notes
and/or Registrable Notes covered by a Registration Statement contemplated
hereby.
The covenants of the Company under Sections 5(c), (d), (f),
(g), (j), (k) and (n) with respect to an Exchange Offer Registration Statement
shall terminate as of the end of the Applicable Period. The covenants of the
Company under Sections 5(c), (d), (e), (f), (g), (j), (k) and (n) with respect
to the Shelf Registration shall terminate as of the end of the Effectiveness
Period.
The Company may require each seller of Registrable Notes as to
which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable Notes
as the Company may, from time to time, reasonably request. The Company may
exclude from such registration the Registrable Notes of any seller so long as
such seller fails to furnish such information within a reasonable time after
receiving such request. Each seller as to which any Shelf Registration is being
effected agrees to furnish promptly to the Company all information required to
be disclosed in order to make the information previously furnished to the
Company by such seller not materially misleading.
If any such Registration Statement refers to any holder by
name or otherwise as the holder of any securities of the Company, then such
Holder shall have the right to require (i) the insertion therein of language, in
form and substance reasonably satisfactory to such Holder, to the effect that
the holding by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the securities
covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Company, or (ii) in
the event that such reference to such Holder by name or other-
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27
wise is not required by the Securities Act or any similar federal statute then
in force, the deletion of the reference to such Holder in any amendment or
supplement to the Registration Statement filed or prepared subsequent to the
time that such reference ceases to be required.
Each Holder of Registrable Notes agrees by its acquisition of
such Registrable Notes, and each Participating Broker-Dealer agrees by its
acquisition of Registrable Notes or Exchange Notes to be sold by such
Participating Broker-Dealer that, upon actual receipt of any notice from the
Company of the happening of any event of the kind described in Section 5(c)(ii),
5(c)(iv), 5(c)(v) or 5(c)(vi) hereof, such Holder or Participating Broker-Dealer
will forthwith discontinue disposition of the Securities covered by such
Registration Statement or Prospectus until such Holder or Participating
Broker-Dealer receives copies of the supplemented or amended Prospectus
contemplated by Section 5(k) hereof, or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto. In
the event that the Company shall give any such notice, the Applicable Period
shall be extended by the number of days during such periods from and including
the date of the giving of such notice to and including the date when each seller
of Registrable Notes covered by such Registration Statement or Exchange Notes to
be sold by such Participating Broker-Dealer, as the case may be, shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 5(k) hereof or (y) the Advice.
6. Registration Expenses
(a) All fees and expenses incident to the performance
of or compliance with this Agreement by the Company and the Guarantors (other
than any underwriting discounts or commissions) shall be borne by the Company,
whether or not the Exchange Offer Registration Statement or any Shelf
Registration is filed or becomes effective or the Exchange Offer is consummated,
including, without limitation, (i) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required to be made with
the NASD in connection with an underwritten offering and (B) reasonable fees and
expenses of compliance with state securities or Blue Sky laws (including,
without limitation, fees and disbursements of counsel in connection with Blue
Sky qualifications of the Securities and determination of the eligibility of
the Securities for investment under the laws of such jurisdictions within the
United States (x) where the Holders are located, in the case of the Exchange
Notes, or (y) as provided in Section 5(h) hereof, in the case of Securities to
be sold by a Participating Broker-Dealer during the Applicable Period)), (ii)
printing expenses, including without limitation, expenses of printing
certificates for Securities
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in a form eligible for deposit with The Depository Trust Company and of printing
Prospectuses if the printing of Prospectuses is requested by the managing
underwriter or underwriters (if any), or is reasonably requested by the Holders
of a majority in aggregate principal amount of the Registrable Notes included in
any Registration Statement or by any Participating Broker-Dealer in respect of
Securities to be sold during the Applicable Period, as the case may be, (iii)
messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company and, in case of a Shelf Registration, reasonable fees
and disbursements of one special counsel for all of the sellers of Registrable
Notes (exclusive of any counsel retained pursuant to Section 7 hereof), subject
to Section 6(b) hereof, (v) fees and disbursements of all independent certified
public accountants referred to in Section 5(m)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) Securities Act liability
insurance, if the Company desires such insurance, (vii) fees and expenses of all
other Persons retained by the Company, including, without limitation, the
Trustee, (viii) internal expenses of the Company (including, without limitation,
all salaries and expenses of officers and employees of the Company performing
legal or accounting duties), (ix) the expense of any annual audit, (x) any fees
and expenses incurred in connection with the listing of the Securities to be
registered on any securities exchange, and the obtaining of a rating of the
Securities, in each case, if applicable, and (xi) the expenses relating to
printing, word processing and distributing all Registration Statements. The
Holders shall be responsible for all of their other out-of-pocket expenses
incurred in connection with the registration of the Registrable Notes. The
Company and the Guarantors shall have no obligation to pay any underwriting
fees, discounts or commissions attributable to the sale of any Registrable
Notes.
(b) In connection with any Shelf Registration
hereunder, the Company shall reimburse the Holders of the Registrable Notes
being registered in such registration for the reasonable fees and disbursements
of not more than one counsel (in addition to appropriate local counsel) chosen
by the Holders of a majority in aggregate principal amount of the Registrable
Notes to be included in such Registration Statement. The Holders shall be
responsible for all of their other out-of-pocket expenses incurred in connection
with their registration of the Registrable Notes. The Company and the Guarantors
shall have no obligation to pay any underwriting fees, discounts or commissions
attributable to the sale of any Registrable Notes.
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7. Indemnification
(a) The Company agrees to indemnify and hold harmless
each Holder participating in a registration hereunder and each Participating
Broker-Dealer selling Exchange Notes during the Applicable Period, and each
Person, if any, who controls any such Holder or Participating Broker-Dealer
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, or is under common control with, or is controlled by, any such
Holder or Participating Broker-Dealer, from and against all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any such Holder or Participating Broker-Dealer
or any such controlling or affiliated Person in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto), including all documents incorporated
therein by reference, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or caused by any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the Company will not be so liable (i) insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Holder furnished to the Company in writing by or on behalf of any selling Holder
expressly for use therein or (ii) insofar as such losses, claims, damages or
liabilities were caused by an untrue statement or omission that was contained or
made in any preliminary prospectus and corrected in the Prospectus or any
amendment or supplement thereto if (x) the Prospectus does not contain any other
untrue statement or omission of a material fact that was the subject matter of
the related proceeding, (y) any such losses, claims, damages or liabilities
resulted from an action, claim or suit by any Person who purchased Registrable
Notes or Exchange Notes which are the subject thereof from the indemnified party
(as defined) and (z) it is established in the related proceeding that such
indemnified party failed to deliver or provide a copy of the Prospectus (as so
amended or supplemented, if applicable) to such Person with or prior to the
confirmation of the sale of such Registrable Notes or Exchange Notes to such
person if required by applicable law, unless such failure to deliver or provide
a copy of such Prospectus (as so amended or supplemented, if applicable) was a
result of non-compliance by the Company with Section 5 hereof. In connection
with any underwritten offering, the Company will also indemnify the
underwriters, if any, selling brokers, dealers and similar securities industry
professionals participating in the distribution, their officers and directors
and each Person who controls such Persons (within the meaning of
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either Section 15 of the Securities Act or Section 20 of the Exchange Act) to
the same extent as provided above with respect to the indemnification of the
Holders and the Participating Broker-Dealers, if requested in connection with
any Registration Statement.
(b) Each Holder participating in a registration
hereunder and each Participating Broker-Dealer selling Exchange Notes during the
Applicable Period, agrees, severally and not jointly, to indemnify and hold
harmless the Company and the other Holders and Participating Broker-Dealers,
and each of their respective directors, officers who sign the Registration
Statement and each Person, if any, who controls the Company and any other Holder
or Participating Broker-Dealer within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to the Holders and the Participating
Broker-Dealers, but only with reference to information relating to such Holder
furnished to the Company in writing by or on behalf of such Holder expressly for
use in any Registration Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to either paragraph (a) or paragraph (b) above,
such Person (the "indemnified party") shall promptly notify the Person against
whom such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel
and the indemnifying party has agreed to pay the fees and expenses of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for (a) the fees and
expenses of more than one separate firm engaged in accordance with clause (ii)
of the preceding sentence (in addition to any local counsel) for all
indemnified parties, and that all such fees and expenses shall be reimbursed as
they are incurred upon written request and presentation of invoices. In any case
involving the Placement Agents and
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Persons who control the Placement Agents, such firm shall be designated in
writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated. In any other case involving the
Holders and such Persons who control Holders, such firm shall be designated in
writing by a majority of affected Holders (measured in terms of the principal
amount of outstanding Securities). In all other cases, such firm shall be
designated by the Company. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but, if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party for such fees and expenses of counsel in accordance with such
request prior to the date of such settlement. Notwithstanding the immediately
preceding sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party shall not be liable for any settlement of the
nature contemplated by the immediately preceding sentence effected without its
consent if such indemnifying party (i) reimburses such indemnified party in
accordance with such request to the extent that it in good faith considers such
request to be reasonable and (ii) provides written notice to the indemnified
party substantiating the unpaid amount as unreasonable, in each case prior to
the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which such indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 7 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative fault
of the indemnifying party or parties on the one hand and of the indemnified
party or parties on the other hand in connection with the statements
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or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of the
Company and the Holders shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Holders and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Holders' respective obligations to contribute
pursuant to this Section 7(d) are several in proportion to the respective
principal amount of Registrable Notes of such Holder that were registered
pursuant to a Registration Statement.
(e) The Company and each Holder agree that it would not be
just or equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Holder shall be required to indemnify or
contribute any amount in excess of the amount by which the total price at which
Registrable Notes were sold by such Holder exceeds the amount of any damages
that such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 7 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this
Section 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Participating Broker-Dealer, any Holder or any Person controlling any
Participating Broker-Dealer or any Holder, or by or on behalf of the Company,
its officers or directors or any Person controlling the Company, (iii)
acceptance of any of the Exchange Notes and (iv) any sale of Registrable Notes
pursuant to a Shelf Registration.
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8. Rules 144 and 144A
Each of the Company and the Guarantors covenants and agrees
that it will file the reports required to be filed by it under the Exchange Act
and the rules and regulations adopted by the SEC thereunder in a timely manner
in accordance with the requirements of the Exchange Act and, if at any time the
Company or any Guarantor is not required to file such reports, the Company or
such Guarantor will, upon the request of any Holder or beneficial owner of
Registrable Notes, make available such information necessary to permit sales
pursuant to Rule 144A. Each of the Company and the Guarantors further covenants
and agrees for so long as any Registrable Notes remain outstanding that it will
take such further action as any Holder of Registrable Notes may reasonably
request, all to the extent required from time to time to enable such holder to
sell Registrable Notes without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144(k) under the Securities Act
and Rule 144A.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Holders of a majority in aggregate principal amount of such
Registrable Notes included in such offering.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. Miscellaneous
(a) No Inconsistent Agreements. None of the Company or
any Guarantor has, as of the date hereof, and none of the Company or any
Guarantor shall, after the date of this Agreement, enter into any agreement with
respect to any of its securities that is inconsistent with the rights granted to
the Holders in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's or
any Guarantor's other issued and outstanding securities under any such
agreements. None of the Company or any Guarantor will enter into any agreement
with respect to any of its securities which
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will grant to any Person piggyback registration rights with respect to any
Registration Statement.
(b) Adjustments Affecting Registrable Notes. None of
the Company or any Guarantor shall, directly or indirectly, take any action with
respect to the Registrable Notes as a class that would adversely affect the
ability of the Holders of Registrable Notes to include such Registrable Notes in
a registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, otherwise than with
the prior written consent of (I) the Company, and (II)(A) the Holders of not
less than a majority in aggregate principal amount of the then outstanding
Registrable Notes and (B) in circumstances that would adversely affect the
Participating Broker-Dealers, the Participating Broker-Dealers holding not less
than a majority in aggregate principal amount of the Exchange Notes held by all
Participating Broker-Dealers; provided, however, that Section 7 and this Section
10(c) may not be amended, modified or supplemented without the prior written
consent of each Holder, each Placement Agent, and each Participating
Broker-Dealer (including any person who was a Holder or Participating
Broker-Dealer of Registrable Notes or Exchange Notes, as the case may be,
disposed of pursuant to any Registration Statement) affected by any such
amendment, modification or supplement. Notwithstanding the foregoing, a waiver
or consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders of Registrable Notes whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect, impair, limit or compromise the rights of other
Holders of Registrable Notes may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being sold pursuant to such
Registration Statement.
(d) Notices. All notices and other communications
(including, without limitation, any notices or other communications to the
Trustee) provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, next-day air courier or facsimile:
(i) if to a Holder or any Participating Broker-
Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may be, set forth on the records of the
registrar under the Indenture;
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(ii) if to the Company, at the following address:
▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) If to a Placement Agent, at the following
address:
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
White & Case LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
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Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; one Business
Day after being timely delivered to a next-day air courier, and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address and in the manner specified in the Indenture.
(e) Successor and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each of the
parties hereto, the Holders and the Participating Broker-Dealers.
(f) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable
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best efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Company or Its Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by the Company
or its affiliates shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) Third-Party Beneficiaries. Holders of Registrable
Notes and Participating Broker-Dealers are intended third-party beneficiaries of
this Agreement, and this Agreement may be enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the
Placement Agreement and the Indenture, is intended by the parties as a final and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein and any and all prior
oral or written agreements, representations, or warranties, contracts,
understandings, correspondence, conversations and memoranda between the Holders
on the one hand and the Company on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby. IN WITNESS WHEREOF, the parties have executed
this Agreement as of the date first written above.
NEW WORLD PASTA COMPANY
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, Finance, and Chief
Financial Officer
PASTA GROUP, L.L.C.
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By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, Finance, and Chief
Financial Officer
WINCHESTER PASTA, L.L.C.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, Finance, and Chief
Financial Officer
Confirmed and accepted as of the date first above written:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
SCOTIA CAPITAL MARKETS (USA) INC.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By /s/▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
38
