JORDAN INDUSTRIES, INC.
----------------------------------------
$155,000,000
10 3/8% SERIES C SENIOR NOTES DUE 2007
----------------------------------------
-------------------
REGISTRATION RIGHTS AGREEMENT
DATED AS OF MARCH 22, 1999
-------------------
XXXXXXXXX, XXXXXX & XXXXXXXX XXXXXXXXX & COMPANY, INC. BANCBOSTON XXXXXXXXX XXXXXXXX INC.
===================================================================================================================
This Registration Rights Agreement (this "Agreement") is made
and entered into as of March 22, 1999, by and among Jordan Industries, Inc., an
Illinois corporation (the "Company"), and Xxxxxxxxx, Xxxxxx & Xxxxxxxx,
Xxxxxxxxx & Company, Inc. and BancBoston Xxxxxxxxx Xxxxxxxx Inc. (each a
"Purchaser" and, collectively, the "Purchasers"), each of which has agreed to
purchase the Company's 10 3/8% Series C Senior Notes due 2007 (the "Series C
Senior Notes") pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement,
dated March 17, 1999 (the "Purchase Agreement"), by and between the Company and
the Purchasers. In order to induce the Purchasers to purchase the Series C
Senior Notes, the Company has agreed to provide the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Purchasers set forth in the Purchase
Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Broker-Dealer Transfer Restricted Senior Notes: Series D
Senior Notes that are acquired by a Broker-Dealer in the Exchange Offer in
exchange for Series C Senior Notes that such Broker-Dealer acquired for its own
account as a result of market-making activities or other trading activities
(other than Series C Senior Notes acquired directly from the Company or any of
its affiliates).
Business Day: Any day except a Saturday, Sunday or other day
in the City of New York, or in the city of the corporate trust office of the
Trustee, on which banks are authorized to close.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series D Senior Notes to be issued in the Exchange Offer, (b)
the maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum
period required pursuant to Section 3(b) hereof and (c) the delivery by the
Company to the Registrar under the Indenture of Series D Senior Notes in the
same aggregate principal amount as the aggregate principal amount of Series C
Senior Notes tendered by Holders thereof pursuant to the Exchange Offer.
1
Damages Payment Date: With respect to the Series C Senior
Notes, each Interest Payment Date.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company under the Act
of the Series D Senior Notes pursuant to the Exchange Offer Registration
Statement pursuant to which the Company shall offer the Holders of all
outstanding Transfer Restricted Senior Notes the opportunity to exchange all
such outstanding Transfer Restricted Senior Notes for Series D Senior Notes in
an aggregate principal amount equal to the aggregate principal amount of the
Transfer Restricted Senior Notes tendered in such exchange offer by such
Holders.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Purchasers
propose to sell the Series C Senior Notes to persons whom they, or persons
acting on their behalf, reasonably believe are "qualified institutional
buyers," as such term is defined in Rule 144A under the Act.
Holders: As defined in Section 2 hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated the Closing Date, among the
Company and U.S. Bank Trust National Association, as trustee (the "Trustee"),
pursuant to which the Senior Notes are to be issued, as such Indenture is
amended or supplemented from time to time in accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture and the
Senior Notes.
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, trust,
unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in a Registration
Statement at the time such Registration Statement is declared effective, as
amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
Record Holder: With respect to any Damages Payment Date, each
Person who is a Holder of Series C Senior Notes on the record date with respect
to the Interest Payment Date on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
2
Registration Statement: Any registration statement of the
Company relating to (a) an offering of Series D Senior Notes pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted Senior
Notes pursuant to the Shelf Registration Statement, in each case, (i) which is
filed pursuant to the provisions of this Agreement and (ii) including the
Prospectus included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
Restricted Broker-Dealer: Any Broker-Dealer which holds
Broker-Dealer Transfer Restricted Senior Notes.
Senior Notes: The Series C Senior Notes and the Series D
Senior Notes.
Series D Senior Notes: The Company's 10 3/8% Series D Senior
Notes due 2007 to be issued pursuant to the Indenture (i) in the Exchange Offer
or (ii) upon the request of any Holder of Series C Senior Notes covered by a
Shelf Registration Statement, in exchange for such Series C Senior Notes.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Senior Notes: Each Senior Note, until the
earliest to occur of (a) the date on which such Senior Note is exchanged in the
Exchange Offer and entitled to be resold to the public by the Holder thereof
without complying with the prospectus delivery requirements of the Act, (b) the
date on which such Senior Note has been disposed of in accordance with a Shelf
Registration Statement, (c) the date on which such Senior Note is disposed of
by a Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the
Exchange Offer Registration Statement (including delivery of the Prospectus
contained therein) or (d) the date on which such Senior Note is distributed to
the public pursuant to Rule 144 under the Act.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted
Senior Notes (each, a "Holder") whenever such Person owns Transfer Restricted
Senior Notes.
3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law (after the procedures set forth in Section 6(a)(i) below have been
complied with), the Company shall (i) cause to be filed with the Commission as
soon as practicable after the Closing Date, but in no event later than 90 days
after the Closing Date, the Exchange Offer Registration Statement, (ii) use
their best efforts to cause such Exchange Offer Registration Statement to
become effective at
3
the earliest possible time, but in no event later than 150 days after the
Closing Date, (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Exchange Offer Registration Statement as may
be necessary in order to cause such Exchange Offer Registration Statement to
become effective, (B) file, if applicable, a post-effective amendment to such
Exchange Offer Registration Statement pursuant to Rule 430A under the Act and
(C) cause all necessary filings, if any, in connection with the registration
and qualification of the Series D Senior Notes to be made under the Blue Sky
laws of such jurisdictions as are necessary to permit Consummation of the
Exchange Offer, and (iv) upon the effectiveness of such Exchange Offer
Registration Statement, commence and Consummate the Exchange Offer. The
Exchange Offer shall be on the appropriate form permitting registration of the
Series D Senior Notes to be offered in exchange for the Series C Senior Notes
that are Transfer Restricted Senior Notes and to permit sales of Broker-Dealer
Transfer Restricted Senior Notes by Restricted Broker-Dealers as contemplated
by Section 3(c) below.
(b) The Company shall use its best efforts to cause the Exchange Offer
Registration Statement to be effective continuously, and shall keep the
Exchange Offer open, for a period of not less than the minimum period required
under applicable federal and state securities laws to Consummate the Exchange
Offer; provided, however, that in no event shall such period be less than 20
Business Days. The Company shall cause the Exchange Offer to comply with all
applicable federal and state securities laws. No securities other than the
Senior Notes shall be included in the Exchange Offer Registration Statement.
The Company shall use its best efforts to cause the Exchange Offer to be
Consummated on the earliest practicable date after the Exchange Offer
Registration Statement has become effective, but in no event later than 30
Business Days thereafter.
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Restricted Broker-Dealer who holds Series C Senior Notes that
are Transfer Restricted Senior Notes and that were acquired for the account of
such Broker-Dealer as a result of market-making activities or other trading
activities, may exchange such Series C Senior Notes (other than Transfer
Restricted Senior Notes acquired directly from the Company) pursuant to the
Exchange Offer; however, such Broker-Dealer may be deemed to be an
"underwriter" within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with its initial
sale of each Series D Senior Note received by such Broker-Dealer in exchange
for Series C Senior Notes in the Exchange Offer, which prospectus delivery
requirement may be satisfied by the delivery by such Broker-Dealer of the
Prospectus contained in the Exchange Offer Registration Statement. Such "Plan
of Distribution" section shall also contain all other information with respect
to such sales of Broker-Dealer Transfer Restricted Senior Notes by Restricted
Broker-Dealers that the Commission may require in order to permit such sales
pursuant thereto, but such "Plan of Distribution" shall not name any such
Broker-Dealer or disclose the amount of Senior Notes held by any such
Broker-Dealer except to the extent required by the Commission as a result of a
change in policy after the date of this Agreement.
The Company shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 6(c) below to the extent
necessary to ensure that it is available for sales of
4
Broker-Dealer Transfer Restricted Senior Notes by Restricted Broker-Dealers,
and to ensure that such Registration Statement conforms with the requirements
of this Agreement, the Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of 180 days from the
date on which the Exchange Offer is Consummated.
The Company shall promptly provide sufficient copies of the
latest version of such Prospectus to such Restricted Broker-Dealers promptly
upon request, and in no event later than two days after such request, at any
time during such one-year period in order to facilitate such sales.
4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company is not required to file an
Exchange Offer Registration Statement with respect to the Series D Senior Notes
because the Exchange Offer is not permitted by applicable law (after the
procedures set forth in Section 6(a)(i) below have been complied with) or (ii)
if any Holder of Transfer Restricted Senior Notes shall notify the Company
within 20 Business Days following the Consummation of the Exchange Offer that
(A) such Holder is prohibited by law or Commission policy from participating in
the Exchange Offer or (B) such Holder may not resell the Series D Senior Notes
acquired by it in the Exchange Offer to the public without delivering a
prospectus and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder or
(C) such Holder is a Broker-Dealer and holds Series C Senior Notes acquired
directly from the Company or one of its affiliates, then the Company shall (x)
cause to be filed on or prior to the earliest of (1) 90 days after the date on
which the Company is notified by the Commission or otherwise determines that it
is not required to file the Exchange Offer Registration Statement pursuant to
clause (i) above and (2) 90 days after the date on which the Company receives
the notice specified in clause (ii) above, a shelf registration statement
pursuant to Rule 415 under the Act, (which may be an amendment to the Exchange
Offer Registration Statement (in either event, the "Shelf Registration
Statement")), relating to all Transfer Restricted Senior Notes the Holders of
which shall have provided the information required pursuant to Section 4(b)
hereof, and (y) use their best efforts to cause such Shelf Registration
Statement to become effective at the earliest possible time, but in no event
later than 120 days after the date on which the Company becomes obligated to
file such Shelf Registration Statement. If, after the Company has filed an
Exchange Offer Registration Statement which satisfies the requirements of
Section 3(a) above, the Company is required to file and make effective a Shelf
Registration Statement solely because the Exchange Offer shall not be permitted
under applicable federal law, then the filing of the Exchange Offer
Registration Statement shall be deemed to satisfy the requirements of clause
(x) above. Such an event shall have no effect on the requirements of clause (y)
above, or on the Effectiveness Target Date as defined in Section 5 below. The
Company shall use its reasonable best efforts to keep the Shelf Registration
Statement discussed in this Section 4(a) continuously effective, supplemented
and amended as required by and subject to the provisions of Sections 6(b) and
(c) hereof to the extent necessary to ensure that it is available for sales of
Transfer Restricted Senior Notes by the Holders thereof entitled to the benefit
of this Section 4(a), and to ensure that it conforms with the requirements of
this Agreement, the Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of at least two years
(as extended pursuant to Section 6(c)(i)) following the date on which such
Shelf
5
Registration Statement first becomes effective under the Act or such shorter
period that will terminate when all Transfer Restricted Senior Notes covered by
the Shelf Registration Statement have been sold pursuant thereto.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Senior Notes may
include any of its Transfer Restricted Senior Notes in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a request therefor,
such information specified in item 507 of Regulation S-K under the Act for use
in connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. No Holder of Transfer Restricted
Senior Notes shall be entitled to Liquidated Damages pursuant to Section 5
hereof unless and until such Holder shall have used its best efforts to provide
all such information. Each Holder as to which any Shelf Registration Statement
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 Holder not materially misleading.
5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement
is not filed with the Commission on or prior to the date specified for such
filing in this Agreement, (ii) any such Registration Statement has not been
declared effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target Date"), (iii) the
Exchange Offer has not been Consummated within 30 Business Days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (iv) subject to the provisions of Section 6(c)(i) below, any
Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable for
its intended purpose without being succeeded immediately (but in any event
within five Business Days thereafter) by a post-effective amendment to such
Registration Statement that cures such failure and that is itself declared
effective within such five Business Day period, other than, in the case of
clause (iv) above, for such period in which such Registration Statement shall
cease to be effective as a result of post-effective amendments to incorporate
annual filings which the Company is required to file with the Commission or
post-effective amendments not otherwise covered by Section 6(c)(i) hereof,
provided that the Company in good faith attempts to cause such Registration
Statement to be declared effective as soon as reasonably practicable (each such
event referred to in clauses (i) through (iv), a "Registration Default"), the
Company hereby agrees to pay to each Holder of Transfer Restricted Senior
Notes, for the first 90-day period immediately following the occurrence of such
Registration Default, liquidated damages in an amount equal to $.05 per week
per $1,000 principal amount of Senior Notes constituting Transfer Restricted
Senior Notes held by such Holder for so long as the Registration Default
continues. The amount of liquidated damages payable to each Holder shall
increase by an additional $.05 per week per $1,000 in principal amount of
Transfer Restricted Senior Notes held by such Holder for each subsequent 90-day
period up to a maximum of $.40 per week per $1,000 in principal amount of
Senior Notes constituting Transfer Restricted Senior Notes held by such Holder;
provided, however, that (1) upon filing of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement), in the
case of (i) above, (2) upon the effectiveness
6
of the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of (ii) above, (3) upon Consummation of
the Exchange Offer, in the case of (iii) above, or (4) upon the filing of a
post-effective amendment to the Registration Statement or an additional
Registration Statement that causes the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement) to again be declared
effective or made usable in the case of (iv) above, the liquidated damages
payable with respect to such Transfer Restricted Senior Notes as a result of
such clause (i), (ii), (iii) or (iv), as applicable, shall cease.
All accrued liquidated damages shall be paid by the Company
to the Global Note Holder by wire transfer of immediately available funds or by
federal funds check and to Holders of Certificated Securities by wire transfer
to the accounts specified by them or by mailing checks to their registered
addresses if no such accounts have been specified on each Damages Payment Date.
All obligations of the Company set forth in the preceding paragraph that are
outstanding with respect to any Transfer Restricted Senior Note at the time
such security ceases to be a Transfer Restricted Senior Note shall survive
until such time as all such obligations with respect to such security shall
have been satisfied in full.
6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company shall comply with all applicable provisions of
Section 6(c) below, shall use their best efforts to effect such exchange and to
permit the sale of Broker-Dealer Transfer Restricted Senior Notes being sold in
accordance with the intended method or methods of distribution thereof, and
shall comply with all of the following provisions:
(i) If, following the date hereof there has been published a
change in Commission policy with respect to exchange offers such as
the Exchange Offer, such that in the reasonable opinion of counsel to
the Company there is a substantial question as to whether the Exchange
Offer is permitted by applicable federal law or Commission policy, the
Company hereby agrees to seek a no-action letter or other favorable
decision from the Commission allowing the Company to Consummate an
Exchange Offer for Series C Senior Notes. The Company hereby agrees to
pursue the issuance of such a decision to the Commission staff level
but shall not be required to take commercially unreasonable action to
effect a change of Commission policy. In connection with the
foregoing, the Company hereby agrees, however, to take all such other
actions as are requested by the Commission or otherwise required in
connection with the issuance of such decision, including without
limitation (A) participating in telephonic conferences with the
Commission, (B) delivering to the Commission staff an analysis
prepared by counsel to the Company setting forth the legal bases, if
any, upon which such counsel has concluded that such an Exchange Offer
should be permitted and (C) diligently pursuing a resolution (which
need not be favorable) by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange
Offer pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Senior Notes shall furnish, upon the request of the
Company, prior to the Consummation of the Exchange Offer, a written
representation to the Company (which may be contained in the letter of
7
transmittal contemplated by the Exchange Offer Registration Statement)
to the effect that (A) it is not an affiliate of the Company, (B) it
is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate in, a
distribution of the Series D Senior Notes to be issued in the Exchange
Offer and (C) it is acquiring the Series D Senior Notes in its
ordinary course of business. Each Holder hereby acknowledges and
agrees that any Broker-Dealer and any such Holder using the Exchange
Offer to participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under Commission policy
as in effect on the date of this Agreement rely on the position of the
Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June
5, 1991) and Exxon Capital Holdings Corporation (available May 13,
1988), as interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993, and similar no-action letters (including,
if applicable, any no-action letter obtained pursuant to clause (i)
above), and (2) must comply with the registration and prospectus
delivery requirements of the Act in connection with a secondary resale
transaction and that such a secondary resale transaction must be
covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as
applicable, of Regulation S-K if the resales are of Series D Senior
Notes obtained by such Holder in exchange for Series C Senior Notes
acquired by such Holder directly from the Company or an affiliate
thereof.
(iii) To the extent required by the Commission, prior to
effectiveness of the Exchange Offer Registration Statement, the
Company shall provide a supplemental letter to the Commission (A)
stating that the Company is registering the Exchange Offer in reliance
on the position of the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) and, if applicable, any no-action letter
obtained pursuant to clause (i) above, (B) including a representation
that the Company has not entered into any arrangement or understanding
with any Person to distribute the Series D Senior Notes to be received
in the Exchange Offer and that, to the best of the Company's
information and belief, each Holder of Transfer Restricted Senior
Notes participating in the Exchange Offer is acquiring the Series D
Senior Notes in its ordinary course of business and has no arrangement
or understanding with any Person to participate in the distribution of
the Series D Senior Notes received in the Exchange Offer and (C) any
other undertaking or representation required by the Commission as set
forth in any no-action letter obtained pursuant to clause (i) above.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement the Company shall comply with all the provisions of
Section 6(c) below and shall use its best efforts to effect such registration
to permit the sale of the Transfer Restricted Senior Notes being sold in
accordance with the intended method or methods of distribution thereof (as
indicated in the information furnished to the Company pursuant to Section 4(b)
hereof), and pursuant thereto the Company will prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Senior Notes in accordance with the intended method or
methods of distribution thereof within the time periods and otherwise in
accordance with the provisions hereof.
8
(c) General Provisions. In connection with any Registration Statement
and any related Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Senior Notes (including, without limitation, any
Exchange Offer Registration Statement and the related Prospectus, to the extent
that the same are required to be available to permit sales of Broker-Dealer
Transfer Restricted Senior Notes by Restricted Broker-Dealers), the Company
shall:
(i) use its reasonable efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this
Agreement, as applicable. Upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B) not
to be effective and usable for resale of Transfer Restricted Senior
Notes during the period required by this Agreement, the Company shall
file promptly an appropriate amendment to such Registration Statement,
(1) in the case of clause (A), correcting any such misstatement or
omission, and (2) in the case of either clause (A) or (B), use its
reasonable efforts to cause such amendment to be declared effective
and such Registration Statement and the related Prospectus to become
usable for their intended purpose(s) as soon as practicable
thereafter. Notwithstanding the foregoing, if (A) the Board of
Directors of the Company determines in good faith that it is in the
best interests of the Company not to disclose the existence of or
facts surrounding any proposed or pending material corporate
transaction involving the Company or its subsidiaries and (B) the
Company notifies the Holders within two Business Days after the Board
of Directors makes such determination, the Company may allow the Shelf
Registration Statement to fail to be effective and usable as a result
of such nondisclosure for up to 60 days during the two-year period of
effectiveness required by Section 4 hereof, but in no event for any
period in excess of 30 consecutive days; provided, however, that the
two-year period referred to in Section 4 hereof during which the Shelf
Registration Statement is required to be effective and usable shall be
extended by the number of days during which such registration
statement was not effective or usable pursuant to the foregoing
provisions.
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, or such shorter
period as will terminate when all Transfer Restricted Senior Notes
covered by such Registration Statement have been sold; cause the
Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 under the Act,
and to comply fully with Rules 424 and 430A, as applicable, under the
Act in a timely manner; and comply with the provisions of the Act with
respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof
set forth in such Registration Statement or supplement to the
Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, confirm such advice in
writing, (A) when the Prospectus or
9
any Prospectus supplement or post-effective amendment has been filed,
and, with respect to any Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration Statement
or amendments or supplements to the Prospectus or for additional
information relating thereto, (C) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement under the Act or of the suspension by any state securities
commission of the qualification of the Transfer Restricted Senior Notes
for offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, (D) of the existence of
any fact or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto or any document incorporated by
reference therein untrue, or that requires the making of any additions
to or changes in the Registration Statement in order to make the
statements therein not misleading, or that requires the making of any
additions to or changes in the Prospectus in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. If at any time the Commission shall issue
any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Senior Notes
under state securities or Blue Sky laws, the Company shall use its
reasonable efforts to obtain the withdrawal or lifting of such order at
the earliest possible time;
(iv) in the case of a Shelf Registration Statement, use
reasonable efforts to furnish to the Purchaser, each selling Holder
named in any Registration Statement or Prospectus and each of the
underwriter(s) in connection with such sale, if any, before filing
with the Commission, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements to any
such Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such
Registration Statement), prior to filing and reasonably respond to
comments received from such persons, and make the Company's
representatives available for discussion of such documents and other
customary due diligence matters.
(v) subject to execution of confidentiality agreements that
are reasonably satisfactory to the Company as to the disclosure of any
non-public information obtained pursuant to Section 6(c)(vi), make
available upon reasonable notice and at reasonable times for
inspection by the selling Holders, any managing underwriter
participating in any disposition pursuant to such Registration
Statement and any attorney or accountant retained by such selling
Holders or any of such underwriter(s), all financial and other
records, pertinent corporate documents and properties of the Company
and cause the Company's officers, directors and employees to supply
all information reasonably requested by any such Holder, underwriter,
attorney or accountant in connection with such Registration Statement
or any post-effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness;
(vi) in the case of a Shelf Registration Statement, if
requested by any selling Holders or the underwriter(s) in connection
with such sale, if any, promptly include in
10
any Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such
selling Holders and underwriter(s), if any, may reasonably request to
have included therein, including, without limitation, information
relating to the "Plan of Distribution" of the Transfer Restricted
Senior Notes, information with respect to the principal amount of
Transfer Restricted Senior Notes being sold to such underwriter(s),
the purchase price being paid therefor and any other terms of the
offering of the Transfer Restricted Senior Notes to be sold in such
offering; and make all required filings of such Prospectus supplement
or post-effective amendment as soon as practicable after the Company
is notified of the matters reasonably requested to be included in such
Prospectus supplement or post-effective amendment;
(vii) in the case of a Shelf Registration Statement, furnish
to each selling Holder and each of the underwriter(s) in connection
with such sale, if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of
each amendment thereto, including all documents incorporated by
reference therein and all exhibits (including exhibits incorporated
therein by reference);
(viii) deliver to each selling Holder of Transfer Restricted
Senior Notes and each of the underwriter(s), if any, without charge,
as many copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as such Persons
reasonably may request; the Company hereby consents to the use (in
accordance with law) of the Prospectus and any amendment or supplement
thereto by each of the selling Holders and each of the underwriter(s),
if any, in connection with the offering and the sale of the Transfer
Restricted Senior Notes covered by the Prospectus or any amendment or
supplement thereto;
(ix) enter into such customary agreements and make such
representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Senior Notes pursuant to any
Registration Statement contemplated by this Agreement as may be
reasonably requested by any Holder of Transfer Restricted Senior Notes
or underwriter in connection with any sale or resale pursuant to any
Registration Statement contemplated by this Agreement, and in such
connection, whether or not an underwriting agreement is entered into
and whether or not the registration is an Underwritten Registration,
the Company shall:
(A) furnish (or in the case of paragraphs (2) and
(3), use its best efforts to furnish) to each selling Holder
and each underwriter, if any, upon the effectiveness of the
Shelf Registration Statement and to each Restricted
Broker-Dealer upon Consummation of the Exchange Offer:
(1) a certificate, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement,
as the case may be, signed on behalf of the Company
by (x) the President or any Vice President and (y) a
principal financial or accounting officer of the
Company confirming, as of the date thereof, the
matters set forth in paragraphs (a) through (d) of
Section 9 of the Purchase Agreement
11
and such other similar matters as the Holders and/or
underwriter(s) may reasonably request;
(2) an opinion, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement,
as the case may be, of counsel for the Company,
covering matters customarily covered in opinions
requested in Underwritten Offerings and dated the
date of effectiveness of the Shelf Registration
Statement or the date of Consummation of the
Exchange Offer, as the case may be; and
(3) a customary comfort letter, dated as of
the date of effectiveness of the Shelf Registration
Statement or the date of Consummation of the
Exchange Offer, as the case may be, from the
Company's independent accountants as well as the
accountants for the Xxxx Products division of Xxxx
Piston Company, Motion Control Engineering, Inc.,
Northern Technologies, Inc., and FIR Group, and any
other accountants or auditors identified in such
letters as having also delivered a letter in
connection therewith, in the customary form and
covering matters of the type customarily covered in
comfort letters to underwriters in connection with
Underwritten Offerings, and affirming the matters
set forth in the comfort letters delivered pursuant
to Section 9(h) of the Purchase Agreement, without
exception;
(B) set forth in full or incorporate by reference in
the underwriting agreement, if any, in connection with any
sale or resale pursuant to any Shelf Registration Statement
the indemnification provisions and procedures of Section 8
hereof with respect to all parties to be indemnified pursuant
to said Section; and
(C) deliver such other documents and certificates as
may be reasonably requested by the selling Holders or the
underwriter(s), if any, to evidence compliance with clause
(A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Company pursuant to this clause (ix).
The above shall be done at each closing under such
underwriting or similar agreement, as and to the extent required
thereunder, and if at any time the representations and warranties of
the Company contemplated in (A)(1) above cease to be true and correct,
the Company shall so advise the underwriter(s), if any, and selling
Holders promptly and if requested by such Persons, shall confirm such
advice in writing;
(x) prior to any public offering of Transfer Restricted
Senior Notes, cooperate with the selling Holders, the underwriter(s),
if any, and their respective counsel in connection with the
registration and qualification of the Transfer Restricted Senior Notes
under the securities or Blue Sky laws of such jurisdictions as the
selling Holders or underwriter(s), if any, may request and do any and
all other acts or things necessary or
12
advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Senior Notes covered by the applicable
Registration Statement; provided, however, that the Company shall not
be required to register or qualify as a foreign corporation where it
is not now so qualified or to take any action that would subject it to
the service of process in suits or to taxation, other than as to
matters and transactions relating to the Registration Statement, in
any jurisdiction where it is not now so subject;
(xi) issue, upon the request of any Holder of Series C Senior
Notes covered by any Shelf Registration Statement contemplated by this
Agreement, Series D Senior Notes, having an aggregate principal amount
equal to the aggregate principal amount of Series C Senior Notes
surrendered to the Company by such Holder in exchange therefor or
being sold by such Holder; such Series D Senior Notes to be registered
in the name of such Holder or in the name of the purchaser(s) of such
Senior Notes, as the case may be; in return, the Series C Senior Notes
held by such Holder shall be surrendered to the Company for
cancellation;
(xii) in connection with any sale of Transfer Restricted
Senior Notes that will result in such securities no longer being
Transfer Restricted Senior Notes, cooperate with the selling Holders
and the underwriter(s), if any, to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted Senior
Notes to be sold and not bearing any restrictive legends; and to
register such Transfer Restricted Senior Notes in such denominations
and such names as the Holders or the underwriter(s), if any, may
request at least two Business Days prior to such sale of Transfer
Restricted Senior Notes;
(xiii) use its reasonable efforts to cause the disposition of
the Transfer Restricted Senior Notes covered by the Registration
Statement to be registered with or approved by such other U.S.
governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriter(s), if any, to consummate
the disposition of such Transfer Restricted Senior Notes, subject to
the proviso contained in clause (x) above;
(xiv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Transfer
Restricted Senior Notes, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(xv) provide a CUSIP number for all Transfer Restricted
Senior Notes not later than the effective date of a Registration
Statement covering such Transfer Restricted Senior Notes and provide
the Trustee under the Indenture with printed certificates for the
Transfer Restricted Senior Notes which are in a form eligible for
deposit with the Depository Trust Company;
13
(xvi) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD, and use its reasonable efforts to
cause such Registration Statement to become effective and approved by
such governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Senior Notes to
consummate the disposition of such Transfer Restricted Senior Notes;
(xvii) otherwise use its reasonable efforts to comply with
all applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term
is defined in paragraph (c) of Rule 158 under the Act);
(xviii) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith, cooperate
with the Trustee and the Holders of Senior Notes to effect such
changes to the Indenture as may be required for such Indenture to be
so qualified in accordance with the terms of the TIA; and execute and
use its reasonable efforts to cause the Trustee to execute, all
documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner; and
(xix) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Senior Note that, upon receipt of the notice referred to in
Section 6(c)(i) or any notice from the Company of the existence of any fact of
the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Senior Notes pursuant to the
applicable Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xv) hereof,
or until it is advised in writing by the Company that the use of the Prospectus
may be resumed, and has received copies of any additional or supplemental
filings that are incorporated by reference in the Prospectus (the "Advice"). If
so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted Senior
Notes that was current at the time of receipt of either such notice. In the
event the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4
hereof, as applicable, shall be extended by the number of days during the
period from and including the date of the giving of such notice pursuant to
Section 6(c)(i) or Section 6(c)(iii)(D) hereof to and including the date when
each selling Holder covered by such Registration Statement shall have received
the copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xv) hereof or shall have received the Advice.
14
7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses (including
filings made with the NASD and counsel fees in connection therewith); (ii) all
fees and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all printing expenses of printing (including printing
certificates for the Series D Senior Notes and printing of Prospectuses); (iv)
all fees and disbursements of counsel for the Company and, in accordance with
Section 7(b) below, the Holders of Transfer Restricted Senior Notes; and (v)
all fees and disbursements of independent certified public accountants of the
Company (including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company.
(b) In connection with any Shelf Registration Statement required by
this Agreement, the Company will reimburse the Holders of Transfer Restricted
Senior Notes the distribution of which is being registered pursuant to the
Shelf Registration Statement for the reasonable fees and disbursements of not
more than one counsel chosen by the Holders of a majority of the principal
amount of such Transfer Restricted Senior Notes, which counsel shall be
satisfactory to the Company in its sole discretion.
8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless (i) each Holder
and (ii) each person, if any, who controls (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act) any Holder (any of the persons
referred to in this clause (ii) being hereinafter referred to as a "controlling
person") and (iii) the respective officers, directors, partners, employees,
representatives and agents of any Holder or any controlling person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an
"Indemnified Holder"), from and against any and all losses, claims, damages,
liabilities and judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus (or any amendment or supplement thereto), 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, in light of the
circumstances under which they were made, not misleading, except insofar as
such losses, claims, damages, liabilities or judgments (i) are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any of the Holders furnished in writing to the
Company by any of the Holders expressly for use therein, (ii) with respect to
the preliminary prospectus, result from the fact that the Holder sold Transfer
Restricted Senior Notes to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the prospectus, as
amended or supplemented, if the Company shall have previously furnished copies
thereof to the
15
Holder in accordance with this Agreement and the prospectus, as amended or
supplemented, would have corrected such untrue statement or omission or (iii)
are a result of the use by the Indemnified Holder of any prospectus, when, upon
receipt of a notice from the Company of the existence of any fact of the kind
described in Section 6(c)(iii)(D) hereof contemplated by the last paragraph of
Section 6 hereof, the Indemnified Holder was not permitted to do so.
In case any action or proceeding shall be brought against any
of the Indemnified Holders with respect to which indemnity may be sought
against the Company, such Indemnified Holder (or the Indemnified Holder
controlled by such controlling person) shall promptly notify the Company in
writing (provided, that the failure to give such notice shall not relieve the
Company of its obligations pursuant to this Agreement). Such Indemnified Holder
shall have the right to employ its own counsel in any such action but the fees
and expenses of such counsel shall be at the expense of the Indemnified Holder
or such controlling person unless (i) the employment of such counsel shall have
been specifically authorized in writing by the Company, (ii) the Company shall
have failed to assume the defense and employ counsel or (iii) the named parties
to any such action (including any impleaded parties) include both the
Indemnified Holder or such controlling person and the Company and the
Indemnified Holder or such controlling person shall have been advised in
writing by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the Company
(in which case the Company shall not have the right to assume the defense of
such action on behalf of the Indemnified Holder or such controlling person), it
being understood, however, that the Company shall not, in connection with any
one such action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) at
any time for such Indemnified Holders, which firm shall be designated by the
Holders and be reasonably satisfactory to the Company. The Company shall not be
liable for any settlement of any such action or proceeding effected without the
Company's prior written consent, which consent shall not be withheld
unreasonably, but if settled with the Company's written consent, and the
Company agrees to indemnify and hold harmless any Indemnified Holder from and
against any loss or liability by reason of such settlement. The Company shall
not, without the prior written consent of each Indemnified Holder effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Holder is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Holder, unless such settlement includes an
unconditional release of such Indemnified Holder from all liability on claims
that are the subject matter of such proceeding.
(b) Each Holder of Transfer Restricted Senior Notes agrees, severally
and not jointly, to indemnify and hold harmless the Company, and its directors,
officers, and any person controlling the Company (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each of the Indemnified Holders, but
only with respect to information relating to such Holder furnished in writing
by such Holder expressly for use in any Registration Statement. In case any
action or proceeding shall be brought against the Company or its directors or
officers or any such controlling person in respect of which indemnity may be
sought against a Holder of Transfer Restricted Senior Notes, such Holder shall
have the rights and duties given the Company and the
16
Company or its directors or officers or such controlling person shall have the
rights and duties given to each Holder by the preceding paragraph. In no event
shall the liability of any selling Holder hereunder be greater in amount than
the dollar amount of the proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
(c) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under Section 8(a) or Section 8(b) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities or judgments referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or judgments (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Holders on the other hand from their sale
of Transfer Restricted Senior Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and of
the Indemnified Holder on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
fault of the Company on the one hand and of the Indemnified Holder on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a material
fact relates to information supplied by the Company or by the Indemnified
Holder and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and judgments referred to above shall be deemed to include, subject to the
limitations set forth in the second paragraph of Section 8(a), any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Company and each Holder of Transfer Restricted Senior
Notes agree that it would not be just and equitable if contribution pursuant to
this Section 8(c) were determined by pro rata allocation (even if the Holders
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The losses, claims, damages,
liabilities or judgments referred to in the immediately preceding paragraph
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 Xxxxxxx 0, xxxx of the Holders (and its
related Indemnified Holders) shall be required to contribute, in the aggregate,
any amount in excess of the amount by which the dollar amount of proceeds
received by such Holder upon the sale of Transfer Restricted Senior Notes
exceeds the amount of any damages which 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 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 8(c) are several in
proportion to the respective principal amount of Series C Senior Notes held by
each of the Holders hereunder and not joint.
17
9. RULE 144A AND RULE 144
The Company hereby agrees with each Holder, for so long as
any Transfer Restricted Senior Notes remain outstanding and during any period
in which the Company (i) is not subject to Section 13 or 15(d) of the
Securities Exchange Act, to make available, upon request of any Holder of
Transfer Restricted Senior Notes, to any Holder or beneficial owner of Transfer
Restricted Senior Notes in connection with any sale thereof and any prospective
purchaser of such Transfer Restricted Senior Notes designated by such Holder or
beneficial owner, the information required by Rule 144A(d)(4) under the Act in
order to permit resales of such Transfer Restricted Senior Notes pursuant to
Rule 144A, and (ii) is subject to Section 13 or 15(d) of the Exchange Act, to
make all filings required thereby in a timely manner in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144.
10. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Senior Notes on the basis provided in customary underwriting
arrangements entered into in connection therewith and (b) completes and
executes all reasonable questionnaires, powers of attorney, lock-up letters and
other documents required under the terms of such underwriting arrangements.
11. SELECTION OF UNDERWRITERS
Subject to the Company's consent, for any Underwritten
Offering, the investment banker or investment bankers and manager or managers
for any Underwritten Offering that will administer such offering will be
selected by the Holders of a majority in aggregate principal amount of the
Transfer Restricted Senior Notes included in such offering. Such investment
bankers and managers are referred to herein as the "underwriters."
12. MISCELLANEOUS
(a) Remedies. Each Holder, in addition to being entitled to exercise
all rights provided herein, in the Indenture, the Purchase Agreement or granted
by law, including recovery of liquidated or other damages, will be entitled to
specific performance of its rights under this Agreement. The Company agrees
that monetary damages would not be adequate compensation for any loss incurred
by reason of a breach by it of the provisions of this Agreement and hereby
agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement
or otherwise conflicts with the provisions hereof. The Company has not
previously entered into any agreement granting any registration rights with
respect to its securities to any Person, other than (i) those rights existing
by virtue of the Stockholders Agreement, dated June 1, 1988, among the Company
and certain of its stockholders, as amended, (ii) those rights existing by
virtue of the registration rights agreement,
18
dated July 25, 1997, among the Company and certain initial purchasers of the
Company's 10 3/8% Series A Senior Notes due 2007, and (iii) those rights
existing by virtue of the registration rights agreement, dated July 25, 1997,
among the Company and certain initial purchasers of the Company's 11 3/4%
Series A Senior Subordinated Debentures due 2009. 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 securities under any
agreement in effect on the date hereof.
(c) Adjustments Affecting the Senior Notes. The Company will not take
any action, or voluntarily permit any change to occur, with respect to the
Senior Notes that would materially and adversely affect the ability of the
Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless the Company has obtained the
written consent of (i) in the case of Section 5 hereof, the Holders of all
outstanding Transfer Restricted Securities, and (ii) in the case of all other
provisions hereof, the Holders of a majority of the outstanding principal
amount of Transfer Restricted Senior Notes. Notwithstanding the foregoing, a
waiver or consent to departure from the provisions hereof that relates
exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant to
such Exchange Offer may be given by the Holders of a majority of the
outstanding principal amount of Transfer Restricted Senior Notes subject to
such Exchange Offer.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records
of the Registrar under the Indenture, with a copy to the Registrar
under the Indenture;
(ii) if to the Company:
Jordan Industries, Inc.
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
With a copy to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
19
Attention: Xxxxxx X. Xxxxxxx
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when receipt acknowledged, if telecopied; and on the next business day, if
timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Senior Notes; provided, however, that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign
acquired Transfer Restricted Senior Notes directly from such Holder at a time
when such Holder could not transfer such Transfer Restricted Senior Notes
pursuant to a Shelf Registration Statement.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the other Operative
Documents (as defined in the Purchase Agreement) is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with
respect to the Transfer Restricted Senior Notes. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
20
REGISTRATION RIGHTS
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
JORDAN INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
and Treasurer
XXXXXXXXX, XXXXXX & XXXXXXXX
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
XXXXXXXXX & COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President
BANCBOSTON XXXXXXXXX XXXXXXXX, INC.
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
