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EXHIBIT 4.3
________________________________________________________________________________
REGISTRATION RIGHTS AGREEMENT
DATED AS OF JULY 9, 1997
AMONG
VENTURE HOLDINGS TRUST,
VEMCO, INC.,
VEMCO LEASING, INC.,
VENTURE INDUSTRIES CORPORATION,
VENTURE HOLDINGS CORPORATION INC.,
VENTURE LEASING COMPANY,
VENTURE MOLD & ENGINEERING CORPORATION
AND
VENTURE SERVICE COMPANY,
AS ISSUERS,
AND
FIRST CHICAGO CAPITAL MARKETS, INC.
AS INITIAL PURCHASER
________________________________________________________________________________
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of July 9, 1997, among Venture Holdings Trust, a grantor
trust organized under the laws of Michigan (the "Trust"), Vemco, Inc., Vemco
Leasing, Inc., Venture Industries Corporation, Venture Holdings Corporation,
Venture Leasing Company, Venture Mold & Engineering Corporation and Venture
Service Company, each a Michigan corporation (each an "Issuer" and, together
with the Trust, the "Issuers"), and First Chicago Capital Markets, Inc. (the
"Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement,
dated July 2, 1997, among the Issuers and the Initial Purchaser (the "Purchase
Agreement"), which provides for the sale by the Issuers to the Initial
Purchaser of $205,000,000 aggregate principal amount of 9 1/2% Senior Notes due
2005 (the "Securities"). In order to induce the Initial Purchaser to enter
into the Purchase Agreement, the Issuers have agreed to provide to the Initial
Purchaser and its respective direct and indirect transferees, among other
things, the registration rights for the Securities set forth in this Agreement.
The execution of this Agreement is a condition to the closing of the
transactions contemplated by the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings (and, unless otherwise indicated, capitalized terms used
herein without definition shall have the meanings ascribed to them by the
Purchase Agreement):
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Advice: See Section 5.
Applicable Period: See Section 2.
Closing Date: The Closing Date as defined in the Purchase
Agreement.
Effectiveness Period: See Section 3.
Effectiveness Target Date: The 120th day following the
Closing Date.
Event Date: See Section 4.
Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2.
Exchange Offer Registration Statement: See Section 2.
Exchange Securities: See Section 2.
Filing Date: The 60th day after the Closing Date.
Holder: Any holder of Transfer Restricted Securities.
Indenture: The Indenture, dated as of the date hereof, among
the Issuers and The Huntington National Bank, as trustee, pursuant to which the
Securities are being issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Initial Purchaser: See the introductory paragraph to this
Agreement.
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Issuers: See the introductory paragraph of this Agreement.
Liquidated Damages: See Section 4.
Participating Broker-Dealer: See Section 2.
Person: An individual, trustee, corporation, partnership,
joint stock company, trust, limited liability company, unincorporated
association, union, business association, firm or other legal entity.
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 promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Exchange Securities and/or the Transfer
Restricted Securities (as applicable) covered by such Registration Statement,
and all other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
Registration Default: See Section 4.
Registration Statement: Any registration statement of the
Issuers, including, but not limited to, the Exchange Offer Registration
Statement or the Shelf Registration, that covers any of the Transfer Restricted
Securities pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration statement,
including post-effective amendments, all exhibits, and all material
incorporated
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by reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 promulgated pursuant to the Securities
Act, as currently in effect, as such rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the SEC.
Rule 144A: Rule 144A promulgated pursuant to the Securities
Act, as currently in effect, as such rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated pursuant to the Securities
Act, as currently in effect, as such rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities: See the introductory paragraphs to this
Agreement.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2.
Shelf Registration: See Section 3.
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Securities: The Securities upon original
issuance thereof and at all times subsequent thereto, until in the case of any
such Securities (i) a Registration Statement covering such Securities has been
declared effective by the SEC and such Securities
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have been disposed of in accordance with such effective Registration Statement,
(ii) such Securities are sold in compliance with Rule 144 or (iii) such
Securities cease to be outstanding.
Trustee: The trustee under the Indenture and, if existent,
the trustee under any indenture governing the Exchange Securities.
Underwritten registration or underwritten offering: A
registration in which securities of the Issuers are sold to an underwriter for
reoffering to the public.
2. Exchange Offer
(a) The Issuers agree to file with the SEC as soon as
practicable after the Closing Date, but in no event later than the Filing Date,
an offer to exchange (the "Exchange Offer") any and all of the Transfer
Restricted Securities for a like aggregate principal amount of debt securities
of the Issuers which are substantially identical in all material respects to
the Securities (and which are entitled to the benefits of the Indenture or a
trust indenture which is identical to the Indenture (other than such changes to
the Indenture or any such identical trust indenture as are necessary to comply
with any requirements of the SEC to effect or maintain the qualification
thereof under the TIA) and which, in either case, has been qualified under the
TIA), except that the Exchange Securities shall have been registered pursuant
to an effective Registration Statement in compliance with the Securities Act.
The Exchange Offer will be registered pursuant to the Securities Act on an
appropriate form (the "Exchange Offer Registration Statement") and will comply
with all applicable tender offer rules and regulations promulgated pursuant to
the Exchange Act and shall be duly registered or qualified pursuant to all
applicable state securities or Blue Sky laws. No secu-
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rities shall be included in the Registration Statement covering the Exchange
Offer other than the Exchange Securities. The Issuers agree to use their best
efforts to (x) cause the Exchange Offer Registration Statement to become
effective pursuant to the Securities Act on or before the Effectiveness Target
Date; (y) keep the Exchange Offer open for not less than 20 business days (or
such longer period required by applicable law) after the commencement of the
Exchange Offer; and (z) consummate the Exchange Offer within 45 days after the
earlier of the effectiveness thereof or the Effectiveness Target Date. Each
Holder who participates in the Exchange Offer will be required to represent
that (i) any Exchange Securities received by it will be acquired in the
ordinary course of its business, (ii) at the time of the consummation of the
Exchange Offer such Holder will have no arrangement or understanding with any
Person to participate in the distribution of the Exchange Securities, and (iii)
such Holder is not an affiliate of the Issuers within the meaning of Rule 405
of the Securities Act (or that if it is such an affiliate, it will comply with
the registration and prospectus delivery requirements of the Securities Act to
the extent applicable). Each Holder that is not a Participating Broker-Dealer
will be required to represent that it is not engaged in, and does not intend to
engage in, the distribution of the Exchange Securities. Each Holder that (i)
is a Participating Broker-Dealer and (ii) will receive Exchange Notes for its
own account in exchange for the Transfer Restricted Securities that it acquired
as the result of market making or other trading activities will be required to
acknowledge that it will deliver a Prospectus as required by law in connection
with any resale of such Exchange Securities. Upon consummation of the Exchange
Offer in accordance with this Agreement, the Issuers shall have no further
obligation to register Transfer Restricted Securities pursuant to Section 2(c)
and Section 3 of this Agreement.
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(b) The Issuers shall include within the Prospectus
contained in the Exchange Offer Registration Statement a section entitled "Plan
of Distribution," acceptable to the Initial Purchaser, 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 Securities received by such broker-dealer in the Exchange Offer (a
"Participating Broker-Dealer"). Such "Plan of Distribution" section shall also
allow the use of the Prospectus by all Persons subject to the prospectus
delivery requirements of the Securities Act, including all Participating
Broker-Dealers, and include a statement describing the means by which
Participating Broker-Dealers may resell the Exchange Securities.
The Issuers shall use their 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, for a period of at least 180 days after consummation of the
Exchange Offer (or such longer period if extended pursuant to the last
paragraph of Section 5) (the "Applicable Period").
In connection with the Exchange Offer, the Issuers shall:
(x) mail as promptly as practicable to each Holder a copy of
the Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal and
related documents;
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(y) utilize the services of a depositary for the Exchange
Offer with an address in the City of New York; and
(z) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York time, on the last
business day on which the Exchange Offer shall remain open.
As soon as practicable after the close of the Exchange Offer,
the Issuers shall:
(i) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all Securities
so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly
to each Holder of Securities, Exchange Securities equal in principal
amount to the Securities of such Holder so accepted for exchange.
(c) If (1) prior to the consummation of the Exchange Offer,
applicable interpretations of the staff of the SEC do not permit the Issuers to
effect the Exchange Offer as contemplated herein, or (2) the Exchange Offer is
not consummated within 165 days of the Closing Date for any reason, then the
Issuers shall promptly deliver to the Holders and the Trustee written notice
thereof (the "Shelf Notice") and the Issuers shall file a Registration
Statement pursuant to Section 3. Following the delivery of a Shelf Notice to
the Holders of Transfer Restricted Securities, the Issuers shall not have any
further obligation to conduct the Exchange Offer pursuant to this Section 2,
provided that the Issuers shall have the right, nonetheless, to proceed to
consummate the Exchange Offer notwithstanding their obligations pursuant
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to this Section 2(c) (and, upon such consummation, their obligation to
consummate a Shelf Registration pursuant to clause (2) above shall
terminate).
3. Shelf Registration
If the Issuers are required to deliver a Shelf Notice as
contemplated by Section 2(c), then:
(a) Shelf Registration. The Issuers shall prepare and
file with the SEC, as promptly as practicable following the delivery of the
Shelf Notice, a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Transfer Restricted
Securities (the "Shelf Registration"). The Shelf Registration shall be on an
appropriate form which permits registration of such Transfer Restricted
Securities for resale by the Holders in the manner or manners reasonably
designated by them (including, without limitation, one or more underwritten
offerings). The Issuers shall not permit any securities other than the
Transfer Restricted Securities to be included in the Shelf Registration. The
Issuers shall use their best efforts, as described in Section 5(b), to cause
the Shelf Registration to be declared effective pursuant to the Securities Act
as promptly as practicable following the filing thereof and to keep the Shelf
Registration continuously effective under the Securities Act until the earlier
of (i) the date which is 24 months after the Closing Date, (ii) the date that
all Transfer Restricted Securities covered by the Shelf Registration have been
sold in the manner set forth and as contemplated in the Shelf Registration or
(iii) there ceases to be outstanding any Transfer Restricted Securities (the
"Effectiveness Period").
(b) Supplements and Amendments. The Issuers shall use
their best efforts to keep the Shelf Registration continuously effective by
supplementing and amending
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the 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 Transfer Restricted Securities
covered by such Registration Statement and by any underwriter of such Transfer
Restricted Securities.
4. Liquidated Damages
(a) The Issuers and the Initial Purchaser agree that the
Holders of Transfer Restricted Securities will suffer damages if the Issuers
fail to fulfill their obligations pursuant to Section 2 or Section 3 hereof and
that it would not be possible to ascertain the extent of such damages.
Accordingly, in the event of such failure by the Issuer to fulfill such
obligations, the Issuers hereby agree to pay liquidated damages ("Liquidated
Damages") to each Holder of Transfer Restricted Securities under the
circumstances and to the extent set forth below:
(i) if neither the Exchange Offer Registration Statement
nor the Shelf Registration has been filed with the SEC on or before
the Filing Date; or
(ii) if neither the Exchange Offer Registration Statement
nor the Shelf Registration is declared effective by the SEC on or
prior to the Effectiveness Target Date; or
(iii) if (A) an Exchange Offer Registration Statement is
declared effective by the SEC, and (B) the Issuers have not exchanged
Exchange Securities for all Securities validly tendered in accordance
with the terms of the Exchange Offer on or prior to 45 days following
the earlier of (i) the effective-
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ness thereof or (ii) the Effectiveness Target Date; or
(iv) the Shelf Registration has been declared effective by
the SEC and such Shelf Registration ceases to be effective or usable
at any time during the Effectiveness Period, without being succeeded
on the same day immediately by a post-effective amendment to such
Registration Statement that cures such failure and that is itself
immediately declared effective on the same day;
(any of the foregoing, a "Registration Default") then the Issuers shall pay to
each Holder of Transfer Restricted Securities Liquidated Damages in an amount
equal to 0.5% per annum of the principal amount of Transfer Restricted
Securities held by such Holder during the first 90-day period immediately
following the occurrence of such Registration Default. The amount of such
Liquidated Damages will increase by an additional 0.5% per annum of the
principal amount of Transfer Restricted Securities with respect to each
subsequent 90-day period, until all Registration Defaults have been cured;
provided, however, that Liquidated Damages shall not at any time exceed 2.0%
per annum of the principal amount of Transfer Restricted Securities. Following
the cure of all Registration Defaults relating to any Transfer Restricted
Securities, the accrual of Liquidated Damages with respect to such Transfer
Restricted Securities will cease. A Registration Default under clause (i)
above shall be cured on the date that either the Exchange Offer Registration
Statement or the Shelf Registration is filed with the SEC; a Registration
Default under clause (ii) above shall be cured on the date that either the
Exchange Offer Registration Statement or the Shelf Registration is declared
effective by the SEC; a Registration Default under clause
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(iii) above shall be cured on the earlier of the date (A) the Exchange Offer is
consummated or (B) a Shelf Registration Statement is declared effective; and a
Registration Default under clause (iv) above shall be cured on the earlier of
(A) the date that the post-effective amendment curing the deficiency in the
Shelf Registration is declared effective or (B) the Effectiveness Period
expires.
(b) The Issuers shall notify the Trustee within one
business day after each and every date on which a Registration Default occurs
(an "Event Date"). Liquidated Damages shall be paid by the Issuers to the
Holders by wire transfer of immediately available funds to the accounts
specified by them or by mailing checks to their registered addresses if no such
accounts have been specified on or before the semiannual interest payment date
provided in the Indenture. Each obligation to pay Liquidated Damages shall be
deemed to commence accruing on the applicable Event Date and to cease accruing
when all Registration Defaults have been cured. In no event shall the Issuers
pay Liquidated Damages in excess of the maximum applicable amount set forth
above, regardless of whether one or multiple Registration Defaults exist.
5. Registration Procedures
In connection with the registration of any Exchange Securities
or Transfer Restricted Securities pursuant to Sections 2 or 3 hereof, the
Issuers shall effect such registration to permit the sale of such Exchange
Securities or Transfer Restricted Securities (as applicable) in accordance with
the intended method or methods of disposition thereof, and pursuant thereto the
Issuers shall:
(a) Prepare and file with the SEC, a Registration
Statement or Registration Statements as prescribed by Section 2 or 3, and to
use their best efforts to cause
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such Registration Statement(s) to become effective and remain effective as
provided herein; provided that, if (1) such filing is pursuant to Section 3, or
(2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, before filing any Registration Statement or Prospectus
or any amendments or supplements thereto, the Issuers shall, if requested,
furnish to and afford the Holders 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 (at least 3
business days prior to such filing, or such later date as is reasonable under
the circumstances) and shall use their best efforts to reflect in each such
document, when so filed with the SEC, such comments as you may reasonably and
timely propose.
(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
Registration Statement continuously effective for the periods required by
Section 2 or Section 3, as applicable; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act, the
Exchange Act and the rules and regulations of the SEC promulgated thereunder
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 Issuers shall be deemed not to
have used their best efforts to keep a Registration Statement effective
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during the Applicable Period if they voluntarily take any action that would
result in selling Holders of the Transfer Restricted Securities covered thereby
or Participating Broker-Dealers seeking to sell Exchange Securities not being
able to sell such Transfer Restricted Securities or such Exchange Securities
during that period, unless (i) such action is required by applicable law, or
(ii) such action is taken by them in good faith and for valid business reasons
(not including avoidance of their obligations hereunder), including the
acquisition or divestiture of assets.
(c) If (1) a Shelf Registration is filed pursuant to Section 3,
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, notify the selling Holders of Transfer Restricted Securities,
or each such Participating Broker-Dealer known to the Issuers, as the case may
be, their counsel and the managing underwriters, if any, promptly 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
(including in such notice a written statement that any Holder may, upon request,
obtain, without charge, one conformed copy of such Registration Statement or
post-effective amendment including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and exhibits), (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
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 Transfer Restricted Securities the
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representations and warranties of the Issuers contained in any agreement
(including any underwriting agreement) contemplated by Section 5(l) below cease
to be true and correct, (iv) of the receipt by the Issuers of any notification
with respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Transfer Restricted
Securities or the Exchange Securities to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation of any
proceeding for such purpose, (v) of the happening of any event 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 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
Issuers' reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3,
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, use its best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a
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Prospectus or suspending the qualification (or exemption from qualification) of
any of the Transfer Restricted Securities or the Exchange Securities (as
applicable) 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 possible
moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested by the managing underwriters, if any, and the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities being sold in
connection with an underwritten offering, (i) promptly incorporate in a
prospectus supplement or post-effective amendment such information as the
managing underwriters, if any, or such Holders or counsel reasonably request to
be included therein, (ii) make all required filings of such prospectus
supplement or such post-effective amendment as soon as practicable after the
Issuers have received notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment, and (iii) supplement or make
amendments to such Registration Statement with such information as the managing
underwriter, if any, and such Holders and counsel reasonably request to be
included therein.
(f) If (1) a Shelf Registration is filed pursuant to Section 3,
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, furnish to each selling Holder of Transfer Restricted
Securities and to each such Participating Broker-Dealer who so requests, as the
case may be, their counsel and each managing underwriter, if any, without
charge, one conformed copy of the Registration Statement or Registration
Statements and each post-effective amendment thereto, including financial
statements and schedules, and, if
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requested, all documents incorporated or deemed to be incorporated therein by
reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3,
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, deliver to each selling Holder of Transfer Restricted
Securities pursuant to a Shelf Registration, or each such Participating
Broker-Dealer, as the case may be, their counsel, and the underwriters, if any,
without charge, as many copies of the Prospectus or Prospectuses (including each
form of preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the last paragraph of this Section 5, the Issuers
hereby consent to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders of Transfer Restricted Securities or each
such Participating Broker-Dealer, as the case may be, and the underwriters or
agents, if any, and dealers (if any), in connection with the offering and sale
of the Transfer Restricted Securities covered by or the sale by Participating
Broker-Dealers of the Exchange Securities pursuant to such Prospectus and any
amendment or supplement thereto.
(h) If a Shelf Registration is filed pursuant to Section 3,
cooperate with the selling Holders of Transfer Restricted Securities and the
managing underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Transfer Restricted Securities to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company, and enable such Transfer
Restricted Securities to be in such denomi-
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nations and registered in such names as the managing underwriters, if any, or
Holders may reasonably request.
(i) If (1) a Shelf Registration is filed pursuant to Section 3, or
(2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker- Dealer who seeks to sell Exchange Securities during
the Applicable Period, upon the occurrence of any event contemplated by
paragraph 5(c)(v) or 5(c)(vi) above, as promptly as practicable prepare and
(subject to Section 5(a) above) file with the SEC, at the expense of the
Issuers, 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 Transfer Restricted
Securities being sold thereunder or to the purchasers of the Exchange Securities
to whom such Prospectus will be delivered by a Participating Broker-Dealer, 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.
(j) Prior to the effective date of the first Registration
Statement relating to the Transfer Restricted Securities, (i) provide the
Trustee with certificates for the Transfer Restricted Securities in a form
eligible for deposit with The Depository Trust Company and (ii) provide a CUSIP
number for the Transfer Restricted Securities.
(k) In connection with an underwritten offering of Transfer
Restricted Securities pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten offerings and take all
such
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other actions as are reasonably requested by the managing underwriters in order
to expedite or facilitate the registration or the disposition of such Transfer
Restricted Securities, and in such connection, (i) make such representations
and warranties to the underwriters, with respect to the business of the Issuers
and their subsidiaries and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, as are customarily made by issuers to underwriters in
underwritten offerings, and confirm the same if and when requested; (ii) obtain
opinions of counsel to the Issuers and updates thereof in form and substance
reasonably satisfactory to the managing underwriters, addressed to the
underwriters covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by
underwriters; (iii) obtain "cold comfort" letters and updates thereof in form
and substance reasonably satisfactory to the managing underwriters from the
independent certified public accountants of the Issuers (and, if necessary, any
other independent certified public accountants of any subsidiary of the Issuers
or of any business acquired by them for which financial statements and
financial data are, or are required to be, included 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 underwritten offerings and such other
matters as are reasonably requested by underwriters as permitted by Statement
on Auditing Standards No. 72; and (iv) if an underwriting agreement is entered
into, the same shall contain indemnification provisions and procedures no less
favorable 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 Transfer Restricted Securities covered by such Registration Statement
and the managing underwriters or agents) with respect to all parties to be
indemnified
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pursuant to said Section. The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder.
(l) If (1) a Shelf Registration is filed pursuant to Section 3, or
(2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, (i) make available, on a confidential basis and subject to
the last sentence of this paragraph, for inspection by any selling Holder of
such Transfer Restricted Securities being sold, or each such Participating
Broker- Dealer, as the case may be, any underwriter participating in any such
disposition of Transfer Restricted Securities, if any, and any attorney,
accountant or other agent retained by any such selling Holder or each such
Participating Broker-Dealer, as the case may be, or underwriter (collectively,
the "Inspectors"), at the offices where normally kept, during reasonable
business hours, all financial and other records, pertinent corporate documents
and properties of the Issuers and their subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them to exercise any
applicable due diligence responsibilities, and (ii) cause the officers,
directors and employees of the Issuers and their subsidiaries to supply all
information in each case reasonably requested by any such Inspector in
connection with such Registration Statement. Information supplied pursuant to
clauses (i) and (ii) above is confidential and shall not be disclosed by the
Inspectors, unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such Registration Statement, (ii) the
release of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction or (iii) the information in such Records has
been made generally available to the public.
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(m) Provide an indenture trustee for the Transfer Restricted
Securities or the Exchange Securities, as the case may be, and cause the
Indenture to be qualified under the TIA not later than the effective date of the
Exchange Offer or the first Registration Statement relating to the Transfer
Restricted Securities; and in connection therewith, cooperate with the trustee
under any such indenture and the holders of the Transfer Restricted Securities,
to effect such changes to such indenture as may be required for such indenture
to be so qualified in accordance with the terms of the TIA; and execute, and use
its best efforts to cause such trustee to execute, all documents as may be
required to effect such changes, and all other forms and documents required to
be filed with the SEC to enable such indenture to be so qualified in a timely
manner.
(n) Comply with all applicable rules and regulations of the SEC
and, as soon as reasonably practicable, make generally available to its security
holders consolidated earnings statements (which need not be audited) of the
Issuers that satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder.
(o) If an Exchange Offer is to be consummated, upon delivery of
the Transfer Restricted Securities by Holders to the Issuers (or to such other
Person as directed by the Issuers) in exchange for the Exchange Securities, the
Issuers shall ▇▇▇▇, or cause to be marked, on such Transfer Restricted
Securities that such Transfer Restricted Securities are being cancelled in
exchange for the Exchange Securities; in no event shall such Transfer Restricted
Securities be marked as paid or otherwise satisfied.
(p) Cooperate with each seller of Transfer Restricted Securities
covered by any Registration Statement and each under- writer, if any,
participating in the disp-
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sition of such Transfer Restricted Securities and their respective counsel in
connection with any filings required to be made with the National Association
of Securities Dealers, Inc. (the "NASD").
(q) Use their best efforts to take all other steps necessary to
effect the registration of the Transfer Restricted Securities or Exchange
Securities, as applicable, covered by a Registration Statement contemplated
hereby.
The Issuers may require each seller of Transfer Restricted Securities
or Participating Broker-Dealer as to which any registration is being effected to
furnish to the Issuers such information regarding such seller or Participating
Broker-Dealer and the distribution of such Transfer Restricted Securities or
Exchange Securities to be sold by such Participating Broker-Dealer, as the case
may be, as the Issuers may, from time to time, reasonably request or is required
by the rules of the SEC. The Issuers may exclude from such registration the
Transfer Restricted Securities of any seller or Participating Broker-Dealer who
fails to furnish such information within a reasonable time after receiving such
request and such excluded seller or Participating Brokers shall not be entitled
to Liquidated Damages hereunder.
Each Holder of Transfer Restricted Securities and each Participating
Broker-Dealer agrees by acquisition of such Transfer Restricted Securities or
Exchange Securities to be sold by such Participating Broker-Dealer, as the case
may be, that, upon receipt of any notice from the Issuers 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), such Holder will forthwith discontinue disposition of such Transfer
Restricted Securities covered by such Registration Statement or Prospectus or
Exchange Securities to be sold by such Participating Broker-Dealer, as the case
may be, until such Holder's receipt of
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the copies of the supplemented or amended Prospectus contemplated by Section
5(j), or until it is advised in writing (the "Advice") by the Issuers that the
use of the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. In the event the Issuers give any notice 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), the time period for the effectiveness of such Registration
Statement set forth in Section 2 or Section 3 hereof, as applicable, shall be
extended by the number of days from the date of such notice to the date when
each selling Holder covered by such Registration Statement shall have received
copies of the supplemental or amended Prospectus contemplated by Section 5(j)
or shall have received the Advice that the use of the applicable Prospectus may
be resumed.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers shall be borne by the Issuers,
whether or not the Exchange Offer or a Shelf Registration is filed or becomes
effective, including, without limitation, (i) all registration and filing fees
(including, without limitation, (A) fees with respect to filings required to be
made with the NASD in connection with an underwritten offering and (B) fees and
expenses of compliance with state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of counsel in connection
with Blue Sky qualifications of the Transfer Restricted Securities or Exchange
Securities (x) where the Holders of Transfer Restricted Securities are located,
in the case of the Exchange Securities, or (y) as provided in Section 5(h), in
the case of Transfer Restricted Securities or Exchange Securities to be sold by
a Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Trans-
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fer Restricted Securities or Exchange Securities 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 underwriters, if any, or, in
respect of Transfer Restricted Securities or Exchange Securities to be sold by
any Participating Broker-Dealer during the Applicable Period, by the Holders of
a majority in aggregate principal amount of the Transfer Restricted Securities
included in any Registration Statement or of such Exchange Securities, as the
case may be), (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Issuers, (v) fees and disbursements of all
independent certified public accountants referred to in Section 5(l)(iii)
(including, without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such performance), (vi) rating
agency fees, (vii) Securities Act liability insurance, if the Issuers desire
such insurance, (viii) fees and expenses of all other Persons retained by the
Issuers, (ix) internal expenses of the Issuers (including, without limitation,
all salaries and expenses of officers and employees of the Issuers performing
legal or accounting duties), (x) the expense of any annual audit, (xi) the fees
and expenses incurred in connection with the listing of the securities to be
registered on any securities exchange and (xii) the expenses relating to
printing, word processing and distributing all Registration Statements,
underwriting agreements, securities sales agreements, and indentures. Nothing
contained in this Section 6 shall create an obligation on the part of the
Issuers to pay or reimburse any Holder for any underwriting commission or
discount attributable to any such Holder's Transfer Restricted Securities
included in an underwritten offering pursuant to a Registration Statement filed
in accordance with the terms of this Agreement, or to guarantee such Holder any
profit or proceeds from the sale of such Securities.
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(b) In connection with any Shelf Registration hereunder, the
Issuers shall reimburse the Holders of the Transfer Restricted Securities being
registered in such registration for the reasonable fees and disbursements of not
more than one counsel (in addition to one local counsel in each relevant
jurisdiction) chosen by the Holders of a majority in aggregate principal amount
of the Transfer Restricted Securities to be included in such Registration
Statement and other reasonable out-of-pocket expenses of the Holders of Transfer
Restricted Securities reasonably incurred in connection with the registration of
the Transfer Restricted Securities.
7. Indemnification
Each Issuer agrees, jointly and severally, to indemnify and hold
harmless (i) the Initial Purchaser, each Holder of Transfer Restricted
Securities, each Holder of Exchange Securities, each Participating
Broker-Dealer, (ii) each person, if any, who controls (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) any such
Person (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 of such Person
or any controlling person (any person referred to in clause (i), (ii) or (iii)
may hereinafter be referred to as an "Indemnified Person") to the fullest extent
lawful, from and against any and all losses, claims, damages, liabilities,
judgments, actions and expenses (including, without limitation, and as incurred,
reimbursement of all reasonable costs of investigating, preparing, pursuing or
defending any claim or action, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, including the reasonable
fees and expenses of counsel to any Indemnified Person) directly or indirectly
caused by, related to, based upon, arising out of or in connection with any
untrue statement or alleged untrue
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statement of a material fact contained in any Registration Statement or
Prospectus (as amended or supplemented if the Issuers shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or caused by,
arising out of or based upon 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 or liabilities
are caused by (i) any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with information furnished
to the Issuers or any underwriter in writing by such Indemnified Person for use
therein, or (ii) any untrue statement contained in or omission from a
preliminary prospectus if a copy of the Prospectus (as then amended or
supplemented, if the Issuers shall have furnished to or on behalf of the Holder
participating in the distribution relating to the relevant Registration
Statement any amendments or supplements thereto) was not sent or given by or on
behalf of such Holder to the person asserting any such losses, liabilities,
claims, damages or expenses who purchased Securities, if such is required by
law at or prior to the written confirmation of the sale of such Securities to
such person and the untrue statement contained in or omission from such
preliminary prospectus was corrected in the Prospectus (or the Prospectus as
amended or supplemented). The Issuers shall notify the Trustee promptly of the
institution, threat or assertion of any claim, proceeding (including any
governmental investigation) or litigation of which it or they shall have become
aware in connection with the matters addressed by this Agreement which involves
the Issuers or an Indemnified Person.
In connection with any Registration Statement in which a Holder of
Transfer Restricted Securities is participating, such Holder of Transfer
Restricted Securities agrees, severally and not jointly, to indemnify and
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hold harmless the Issuers and their directors and officers and each person who
controls the Issuers within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Issuers to each Indemnified Person, but only with reference to
information furnished to the Issuers in writing by such Indemnified Person for
use in any Registration Statement or Prospectus, any amendment or supplement
thereto, or any preliminary prospectus. The liability of any Indemnified
Person pursuant to this paragraph shall in no event exceed the net proceeds
received by such Indemnified Person from sales of Transfer Restricted
Securities giving rise to such obligations.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought (the "indemnifying
person") in writing, and the indemnifying person shall have the right to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the indemnifying person
may reasonably designate in such proceeding and shall pay the reasonable fees
and expenses actually incurred by 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 person and the
indemnified party shall have mutually agreed in writing to the contrary, (ii)
the indemnifying person failed to assume the defense within a reasonable time
after the commencement of the action and employ counsel reasonably satisfactory
to the indemnified party or (iii) the named parties to any such action
(including
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any impleaded parties) include both such indemnified party and the indemnifying
person, or any affiliate of the indemnifying person and such indemnified party
shall have been reasonably advised by counsel in writing that either (x) there
may be one or more legal defenses available to it which are different from or
additional to those available to the indemnifying person or such affiliate of
the indemnifying person or (y) a conflict may exist between such indemnified
party and the indemnifying person or such affiliate of the indemnifying person
(in which case the indemnifying person shall not have the right to assume the
defense of such action on behalf of such indemnified party, it being
understood, however, that the indemnifying person shall not, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all such indemnified
parties, which firm shall be designated in writing by indemnified parties who
sold a majority in aggregate principal amount of Transfer Restricted Securities
sold by all such indemnified parties and any such separate firm for the
Issuers, their directors, their officers and such control persons of the
Issuers shall be designated in writing by the Issuers. The indemnifying person
shall not be liable for any settlement of any proceeding effected without its
written consent, which consent shall not be unreasonably withheld, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying person agrees to indemnify any indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying person shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
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settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable (other than by reason of the exceptions or
provisions therein) to an indemnified party in respect of any losses, claims,
damages, liabilities, or expenses referred to therein (other than by reason of
the exceptions provided therein), then each indemnifying person under such
paragraphs, 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, liabilities, or expenses (i) in such proportion
as is appropriate to reflect the relative benefits of the indemnified party on
the one hand and the indemnifying person(s) on the other in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities, or expenses or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the indemnifying person(s) and the indemnified party, as
well as any other relevant equitable considerations. The relative fault of the
indemnifying person(s), on the one hand, and any indemnified parties, on the
other, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
indemnifying person(s), on the one hand, or by such indemnified parties, on the
other, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were
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determined by pro rata allocation (even if such indemnified parties were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any reasonable legal or other expenses actually
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall an indemnified party be required to contribute any
amount in excess of the amount by which proceeds received by such indemnified
party from sales of Transfer Restricted Securities exceeds the amount of any
damages that such indemnified party 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 indemnity and contribution agreements contained in this Section 7
will be in addition to any liability which the indemnifying persons may
otherwise have to the indemnified parties referred to above. The indemnified
parties' obligations to contribute pursuant to Section 7 are several in
proportion to the respective principal amount of Securities sold by each of the
indemnified parties hereunder and not joint.
8. Rules 144 and 144A
The Issuers covenant that they will file the reports required to be
filed by them pursuant to the Securities Act and the Exchange Act and the rules
and
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regulations adopted by the SEC thereunder in a timely manner and, if at any
time the Issuers are not required to file such reports, they will, upon the
request of any Holder of Transfer Restricted Securities, make available
information required by Rules 144 and 144A under the Securities Act in order to
permit sales pursuant to Rule 144 and Rule 144A.
9. Underwritten Registrations
(a) If any of the Transfer Restricted Securities covered by any
Shelf Registration are to be sold in an underwritten offering, the investment
banker or investment bankers and manager or managers that will manage the
offering will be selected by the Holders of a majority in aggregate principal
amount of such Transfer Restricted Securities included in such offering and
reasonably acceptable to the Issuers.
No Holder of Transfer Restricted Securities may participate in any
underwritten registration hereunder, unless such Holder (i) agrees to sell such
Holder's Transfer Restricted Securities on the basis provided in any customary
underwriting arrangements entered into in connection therewith and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
(b) Each Holder of Transfer Restricted Securities agrees, if
requested (pursuant to a timely written notice) by the managing underwriters in
an underwritten offering or placement agent in a private offering of the
Company's debt securities, not to effect any private sale or distribution
(including a sale pursuant to Rule 144(k) and Rule 144A, but excluding
non-public sales to any of its affiliates, officers, directors, employees and
controlling persons) of any of the Securities except pursuant to an Exchange
Offer, during the period beginning 10
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days prior to, and ending 90 days after, the closing date of the underwritten
offering.
The foregoing provisions shall not apply to any Holder of Transfer
Restricted Securities if such Holder is prevented by applicable statute or
regulation from entering into any such agreement.
The Issuers agree, without the written consent of the managing
underwriters in an underwritten offering of Transfer Restricted Securities
covered by a Registration Statement filed pursuant to Section 3 hereof, not to
effect any public or private sale or distribution of their respective debt
securities, including a sale pursuant to Regulation D or Rule 144A under the
Securities Act, during the period beginning 10 days prior to, and ending 90 days
after, the closing date of each underwritten offering made pursuant to such
Registration Statement; provided, however, that such period shall be extended by
the number of days from and including the date of the giving of any notice
pursuant to Section 5(c)(v) or 5(c)(vi) hereof to and including the date when
each seller of Transfer Restricted Securities covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 5(j) hereof and provided further, that no
such offering restriction shall apply to more than one such underwritten
offering per twelve-month period.
10. Miscellaneous
(a) Remedies. In the event of a breach by the Issuers of any of
their obligations under this Agreement, each Holder of Transfer Restricted
Securities, in addition to being entitled to exercise all rights provided
herein, in the Indenture or, in the case of the Initial Purchaser, in the
Purchase Agreement, or granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement.
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Subject to Section 4, the Issuers agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by them of
any of the provisions of this Agreement and hereby further agree that, in the
event of any action for specific performance in respect of such breach, they
shall waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. None of the Issuers will enter
into any agreement with respect to any of their respective securities which will
grant to any Person piggy-back registration rights with respect to an Exchange
Offer Registration Statement or a Shelf Registration.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Issuers have obtained the written consent of
holders of at least a majority of the then outstanding aggregate principal
amount of Transfer Restricted Securities and Exchange Securities held by
Participating Broker-Dealers holding Exchange Securities. 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 and Participating
Broker-Dealers holding Exchange Securities 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 and
Participating Broker-Dealers holding Exchange Securities may be given by holders
of at least a majority in aggregate principal amount of the Transfer Restricted
Securities and Exchange Securities held by Participating Broker-Dealers being
sold by such holders pursuant to such Registration Statement; provided that the
provisions of this sentence may not be amended,
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modified or supplemented except in accordance with the provisions of the
immediately preceding sentence.
(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 telecopier:
(i) if to a Holder of Transfer Restricted Securities, at the
most current address given by the Trustee to the Issuers; and
(ii) if to the Issuers: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Venture Holdings
Trust, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, (Tel: ▇▇▇-▇▇▇-▇▇▇▇) (Fax: ▇▇▇-▇▇▇-▇▇▇▇), with copies to Dykemma
▇▇▇▇▇▇▇ PLLC, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. (Tel: ▇▇▇-▇▇▇-▇▇▇▇) (Fax: ▇▇▇-▇▇▇-▇▇▇▇)
and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, P.C., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Tel: ▇▇▇-▇▇▇-▇▇▇▇)(▇▇▇-▇▇▇-▇▇▇▇).
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; ten business
days after being deposited in the mail, postage prepaid, if mailed; three
business days after being timely delivered to a next-day air courier; and when
receipt is acknowledged by the addressee, if telecopied.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee
under the Indenture at the address specified in such Indenture.
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(e) 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 Securities. The Issuers
agree that the holders of the Securities shall be third party beneficiaries to
the agreements made hereunder by the Issuers and each holder shall have the
right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights hereunder.
(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 INTERNAL LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
(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 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,
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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 unen- forceable.
(j) Entire Agreement. This Agreement, together with the Purchase
Agreement, is intended by the parties as a final expression of their agreement,
and is intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein.
(k) Securities Held by the Issuers or Their Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Transfer
Restricted Securities is required hereunder, Transfer Restricted Securities held
by the Issuers or any of their affiliates (as such term is defined in Rule 405
under the Securities Act) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
VENTURE HOLDINGS TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
VEMCO INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
VEMCO LEASING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
VENTURE INDUSTRIES CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
39
VENTURE HOLDINGS CORPORATION INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
VENTURE LEASING COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
VENTURE MOLD & ENGINEERING CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
VENTURE SERVICE COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
40
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first
above written.
FIRST CHICAGO CAPITAL MARKETS, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
