EXHIBIT 4.2
EXECUTION COPY
HAWK CORPORATION
$110,000,000 8-3/4% OF SENIOR NOTES DUE 2014
REGISTRATION RIGHTS AGREEMENT
November 1, 2004
XXXXXXXXX & COMPANY, INC.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
HAWK CORPORATION, a Delaware corporation (the "Company"), is issuing and
selling to XXXXXXXXX & COMPANY, INC. (the "Initial Purchaser"), upon the terms
set forth in the Purchase Agreement dated October 25, 2004, by and among the
Company, the Initial Purchaser and the Guarantors named therein (the "Purchase
Agreement"), $110,000,000 aggregate principal amount of 8-3/4% Senior Notes due
2014 issued by the Company (each, a "Note" and collectively, the "Notes"). As an
inducement to the Initial Purchaser to enter into the Purchase Agreement, the
Company and the Guarantors listed on the signature pages hereto agree with the
Initial Purchaser, for the benefit of the Holders (as defined below) of the
Notes (including, without limitation, the Initial Purchaser), as follows:
1. DEFINITIONS
Capitalized terms that are used herein without definition and are defined
in the Purchase Agreement shall have the respective meanings ascribed to them in
the Purchase Agreement. As used in this Agreement, the following terms shall
have the following meanings:
ADDITIONAL INTEREST: See Section 4(a).
ADVICE: See Section 5(w).
AGREEMENT: This Registration Rights Agreement, dated as of the Issue Date,
between the Company and the Initial Purchaser.
APPLICABLE PERIOD: See Section 2(e).
BUSINESS DAY: A day that is not a Saturday, a Sunday or a day on which
banking institutions in the City of New York are authorized or required by law
or executive order to be closed.
COMPANY: See the introductory paragraph to this Agreement.
DAY: Unless otherwise expressly provided, a calendar day.
EFFECTIVENESS DATE: The 150th day after the Issue Date.
EFFECTIVENESS PERIOD: See Section 3(a).
EVENT DATE: See Section 4(b).
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
EXCHANGE NOTES: 8-3/4% Senior Notes due 2014 of the Company, identical in
all material respects to the Notes, including the guarantees endorsed thereon,
except for references to series and restrictive legends.
EXCHANGE OFFER: See Section 2(a).
EXCHANGE REGISTRATION STATEMENT: See Section 2(a).
FILING DATE: The 90th day after the Issue Date.
GUARANTOR: Each subsidiary of the Company that guarantees the obligations
of the Company under the Notes and Indenture.
HOLDER: Any registered holder of Registrable Notes.
INDEMNIFIED PARTY: See Section 7(c).
INDEMNIFYING PARTY and INDEMNIFYING PARTIES: See Section 7(c).
INDENTURE: The Indenture, dated as of the Issue Date, among the Company,
the Guarantors and HSBC Bank USA, National Association, as trustee, pursuant to
which the Notes are being issued, as amended or supplemented from time to time
in accordance with the terms hereof.
INITIAL PURCHASER: See the introductory paragraph to this Agreement.
INITIAL SHELF REGISTRATION: See Section 3(a).
INSPECTORS: See Section 5(o).
ISSUE DATE: November 1, 2004
LOSSES: See Section 7(a).
NASD: National Association of Securities Dealers, Inc.
NOTES: See the introductory paragraph to this Agreement.
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PARTICIPATING BROKER-DEALER: See Section 2(e).
PERSON: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm, government or agency or political subdivision
thereof, or other legal entity.
PRIVATE EXCHANGE: See Section 2(f).
PRIVATE EXCHANGE NOTES: See Section 2(f).
PROSPECTUS: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses 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 Registrable Notes 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.
PURCHASE AGREEMENT: See the introductory paragraph to this Agreement.
RECORDS: See Section 5(o).
REGISTRABLE NOTES: (i) Notes, (ii) Private Exchange Notes and (iii)
Exchange Notes received in the Exchange Offer, in each case, that may not be
sold without restriction under federal or state securities laws.
REGISTRATION STATEMENT: Any registration statement of the Company and the
Guarantors filed with the SEC under the Securities Act (including, but not
limited to, the Exchange Registration Statement, the Shelf Registration and any
Subsequent Shelf Registration) that covers any of the Registrable Notes 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 by reference or deemed to be
incorporated by reference in such registration statement.
RULE 144: Rule 144 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer or such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
RULE 144A: Rule 144A promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
RULE 415: Rule 415 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
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RULE 430A: Rule 430A promulgated under the Securities Act, 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: The Notes, the Exchange Notes and the Private Exchange Notes.
SECURITIES ACT: The Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
SHELF NOTICE: See Section 2(j).
SHELF REGISTRATION: See Section 3(b).
SUBSEQUENT SHELF REGISTRATION: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
TRUSTEE: The trustee under the Indenture and, if existent, the trustee
under any indenture governing the Exchange Notes and Private Exchange Notes (if
any).
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
2. EXCHANGE OFFER
(a) Unless the Exchange Offer would not be permitted by applicable laws
or a policy of the SEC, the Company shall (and shall cause each
Guarantor to) (i) prepare and file with the SEC no later than the
Filing Date, a registration statement (the "Exchange Registration
Statement") on an appropriate form under the Securities Act with
respect to an offer (the "Exchange Offer") to the Holders of Notes
to issue and deliver to such Holders, in exchange for the Notes, a
like principal amount of Exchange Notes, (ii) use its best efforts
to cause the Exchange Registration Statement to become effective no
later than the Effectiveness Date, (iii) use its best efforts to
keep the Exchange Registration Statement effective until the
consummation of the Exchange Offer in accordance with its terms, and
(iv) to commence the Exchange Offer and to issue on or prior to 30
Business Days after the date on which the Exchange Registration
Statement is declared effective, Exchange Notes in exchange for all
Notes tendered prior thereto in the Exchange Offer. The Exchange
Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate applicable law or any applicable
interpretation of the staff of the SEC.
(b) The Exchange Notes shall be issued under, and entitled to the
benefits of, the Indenture or a trust indenture that is identical to
the Indenture (other than such changes as are necessary to comply
with any requirements of the SEC to effect or maintain the
qualifications thereof under the TIA).
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(c) Interest on the Exchange Notes and Private Exchange Notes will
accrue from the last interest payment due date on which interest was
paid on the Notes surrendered in exchange therefor or, if no
interest has been paid on the Notes, from the date of original issue
of the Notes. Each Exchange Note and Private Exchange Note shall
bear interest at the rate set forth thereon; provided, that interest
with respect to the period prior to the issuance thereof shall
accrue at the rate or rates borne by the Notes from time to time
during such period.
(d) The Company may require each Holder as a condition to participation
in the Exchange Offer to represent (i) that any Exchange Notes
received by it will be acquired in the ordinary course of its
business, (ii) that at the time of the commencement and consummation
of the Exchange Offer such Holder has not entered into any
arrangement or understanding with any Person to participate in the
distribution (within the meaning of the Securities Act) of the
Exchange Notes in violation of the provisions of the Securities Act,
(iii) that such Holder is not an "affiliate" of the Company within
the meaning of Rule 405 of the Securities Act, or, if it is an
"affiliate" of the Company, that it will comply with the
registration and prospectus delivery requirements of the Securities
Act to the extent applicable to it, (iv) if such Holder is not a
broker-dealer, that it is not engaged in, and does not intend to
engage in, the distribution of the Notes and (v) if such Holder is a
Participating Broker-Dealer, that it will deliver a Prospectus in
connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Guarantor to) include within
the Prospectus contained in the Exchange Registration Statement a
section entitled "Plan of Distribution" reasonably 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 Notes received by such broker-dealer in
the Exchange Offer for its own account in exchange for Notes that
were acquired by it as a result of market-making or other trading
activity (a "Participating Broker-Dealer"), whether such positions
or policies have been publicly disseminated by the staff of the SEC
or such positions or policies, in the judgment of the Initial
Purchaser, represent the prevailing views of the staff of the SEC.
Such "Plan of Distribution" section shall also allow, to the extent
permitted by applicable policies and regulations of the SEC, the use
of the Prospectus by all Persons subject to the prospectus delivery
requirements of the Securities Act, including, to the extent so
permitted, all Participating Broker-Dealers, and include a statement
describing the manner in which Participating Broker-Dealers may
resell the Exchange Notes. The Company shall use its best efforts to
keep the Exchange 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 such
period of time as such Persons must comply with such requirements in
order to resell the Exchange Notes (the "Applicable Period").
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(f) If, upon consummation of the Exchange Offer, the Initial Purchaser
holds any Notes acquired by it and having the status of an unsold
allotment in the initial distribution, the Company (upon the written
request from the Initial Purchaser) shall, simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, issue and
deliver to the Initial Purchaser, in exchange (the "Private
Exchange") for the Notes held by the Initial Purchaser, a like
principal amount of Senior Notes that are identical to the Exchange
Notes except for the existence of restrictions on transfer thereof
under the Securities Act and securities laws of the several states
of the United States (the "Private Exchange Notes") (and which are
issued pursuant to the same indenture as the Exchange Notes). The
Private Exchange Notes shall bear the same CUSIP number as the
Exchange Notes.
(g) In connection with the Exchange Offer, the Company shall (and shall
cause each Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Registration Statement, together with an
appropriate letter of transmittal that is an exhibit to the
Exchange Offer Registration Statement, and any related
documents;
(ii) keep the Exchange Offer open for not less than 20 Business
Days after the date notice thereof is mailed to the Holders
(or longer if required by applicable law)
(iii) utilize the services of a depository for the Exchange Offer
with an address in the Borough of Manhattan, the City of New
York, which may be the Trustee or an affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at any
time prior to the close of business, New York time, on the
last Business Day on which the Exchange Offer shall remain
open; and
(v) otherwise comply in all material respects with all applicable
laws.
(h) As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Company shall (and shall
cause each Guarantor to):
(i) accept for exchange all Registrable Notes validly tendered
pursuant to the Exchange Offer or the Private Exchange, as the
case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Notes
so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each
Holder tendering such Registrable Notes, Exchange Notes or
Private Exchange
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Notes, as the case may be, equal in principal amount to
the Registrable Notes of such Holder so accepted for
exchange.
(i) The Exchange Notes and the Private Exchange Notes may be
issued under (i) the Indenture or (ii) an indenture identical
to the Indenture (other than such changes as are necessary to
comply with any requirements of the SEC to effect or maintain
the qualification thereof under the TIA), which in either
event will provide that the Exchange Notes will not be subject
to the transfer restrictions set forth in the Indenture, that
the Private Exchange Notes will be subject to the transfer
restrictions set forth in the Indenture, and that the Exchange
Notes, the Private Exchange Notes and the Notes, if any, will
be deemed one class of security (subject to the provisions of
the Indenture) and entitled to participate in any Guarantee
(as such terms are defined in the Indenture) on an equal and
ratable basis.
(j) If: (i) because of any change in law or in currently
prevailing interpretations of the staff of the SEC, the
Company is not permitted to effect the Exchange Offer (after
the Company has complied with the procedures set forth
herein); (ii) subsequent to the consummation of the Private
Exchange, any Holder of Private Exchange Notes so requests;
(iii) the Exchange Offer is not consummated within 30 Business
Days after the Effectiveness Date; or (iv) in the case of (A)
any Holder not permitted by applicable law or SEC policy to
participate in the Exchange Offer, (B) any Holder
participating in the Exchange Offer that receives Exchange
Notes that may not be sold without restriction under state and
federal securities laws (other than due solely to the status
of such Holder as an affiliate of the Company within the
meaning of the Securities Act) or (C) any broker-dealer that
holds Notes acquired directly from the Company or any of its
affiliates and, in each such case contemplated by this clause
(iv), and such Holder notifies the Company within six months
of consummation of the Exchange Offer; then the Company shall
promptly (and in any event within five Business Days) deliver
to the Holders (or in the case of an occurrence of any event
described in clause (iv) of this Section 2(j), to any such
Holder) and the Trustee notice thereof (the "Shelf Notice")
and shall file an Initial Shelf Registration pursuant to
Section 3.
3. SHELF REGISTRATION
If a Shelf Notice is delivered pursuant to Section 2(j), then this Section
3 shall apply to all Registrable Notes. Otherwise, upon consummation of the
Exchange Offer in accordance with Section 2, the provisions of Section 3 shall
apply solely with respect to (i) Notes held by any Holder thereof not permitted
to participate in the Exchange Offer, (ii) Notes held by any broker-dealer that
acquired such Notes directly from the Company or any of its affiliates and (iii)
Exchange Notes that are not freely tradeable as contemplated by Section 2(j)(iv)
hereof, provided in each case that the relevant Holder has duly notified the
Company within six months of the Exchange Offer as required by Section 2(j)(iv).
(a) Initial Shelf Registration. The Company shall (and shall cause each
Guarantor to), as promptly as practicable, file with the SEC a
Registration Statement for an
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offering to be made on a continuous basis pursuant to Rule 415
covering all of the Registrable Notes (the "Initial Shelf
Registration"). If the Company (and any Guarantor) has not yet filed
an Exchange Registration Statement, the Company shall (and shall
cause each Guarantor to) file with the SEC the Initial Shelf
Registration on or prior to the Filing Date and shall use its best
efforts to cause such Initial Shelf Registration to be declared
effective under the Securities Act on or prior to the Effectiveness
Date. Otherwise, the Company shall (and shall cause each Guarantor
to) file with the SEC the Initial Shelf Registration within 30 days
of the delivery of the Shelf Notice and shall use its best efforts
to cause such Shelf Registration to be declared effective under the
Securities Act as promptly as practicable thereafter (but in no
event more than 90 days after delivery of the Shelf Notice). The
Initial Shelf Registration shall be on Form S-1 or another
appropriate form permitting registration of such Registrable Notes
for resale by Holders in the manner or manners reasonably designated
by them (including, without limitation, one or more underwritten
offerings). The Company and Guarantors shall not permit any
securities other than the Registrable Notes to be included in any
Shelf Registration. The Company shall (and shall cause each
Guarantor to) use its best efforts to keep the Initial Shelf
Registration continuously effective under the Securities Act until
the date which is 24 months from the Issue Date (subject to
extension pursuant to the last paragraph of Section 5(w) (the
"Effectiveness Period"), or such shorter period ending when (i) all
Registrable Notes covered by the Initial Shelf Registration have
been sold in the manner set forth and as contemplated in the Initial
Shelf Registration, (ii) a Subsequent Shelf Registration covering
all of the Registrable Notes covered by and not sold under the
Initial Shelf Registration or an earlier Subsequent Shelf
Registration has been declared effective under the Securities Act or
(iii) there cease to be any outstanding Registrable Notes.
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration or
any Subsequent Shelf Registration (as defined below) ceases to be
effective for any reason at any time during the Effectiveness Period
(other than because of the sale of all of the securities registered
thereunder), the Company shall (and shall cause each Guarantor to)
use its best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within
30 days of such cessation of effectiveness amend such Shelf
Registration in a manner to obtain the withdrawal of the order
suspending the effectiveness thereof, or file (and cause each
Guarantor to file) an additional "shelf" Registration Statement
pursuant to Rule 415 covering all of the Registrable Notes (a
"Subsequent Shelf Registration"). If a Subsequent Shelf Registration
is filed, the Company shall (and shall cause each Guarantor to) use
its best efforts to cause the Subsequent Shelf Registration to be
declared effective as soon as practicable after such filing and to
keep such Subsequent Shelf Registration continuously effective for a
period equal to the number of days in the Effectiveness Period less
the aggregate number of days during which the Initial Shelf
Registration or any Subsequent Shelf Registration was previously
continuously effective. As used herein the term "Shelf Registration"
means the Initial Shelf Registration and any Subsequent Shelf
Registrations.
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(c) Supplements and Amendments. The Company shall promptly supplement
and amend any Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used
for such Shelf Registration, if required by the Securities Act, or
if reasonably requested in writing by the Holders of a majority in
aggregate principal amount of the Registrable Notes covered by such
Shelf Registration or by any underwriter of such Registrable Notes.
(d) Provision of Information. No Holder of Registrable Notes shall be
entitled to include any of its Registrable Notes in any Shelf
Registration pursuant to this Agreement unless such Holder furnishes
to the Company and the Trustee in writing, within 45 days after
receipt of a written request therefor, such information as the
Company and the Trustee after conferring with counsel with regard to
information relating to Holders that would be required by the SEC to
be included in such Shelf Registration or Prospectus included
therein, may reasonably request for inclusion in any Shelf
Registration or Prospectus included therein, and no such Holder
shall be entitled to Additional Interest pursuant to Section 4
hereof unless and until such Holder shall have provided such
information.
4. ADDITIONAL INTEREST
(a) The Company and each Guarantor acknowledges and agrees that the
Holders of Registrable Notes will suffer damages if the Company or
any Guarantor fails to fulfill its material obligations under
Section 2 or Section 3 hereof and that it would not be feasible to
ascertain the extent of such damages with precision. Accordingly,
the Company and the Guarantors agree to pay additional cash interest
on the Notes ("Additional Interest") under the circumstances and to
the extent set forth below (each of which shall be given independent
effect):
(i) if (A) neither the Exchange Registration Statement nor the
Initial Shelf Registration is filed with the SEC on or prior
to the Filing Date or (B) notwithstanding that the Company has
consummated or will consummate an Exchange Offer, the Company
is required to file an Initial Shelf Registration and such
Initial Shelf Registration is not filed on or prior to 30 days
of the delivery of a Shelf Notice, then commencing on the day
after either such required filing date, Additional Interest
shall accrue on the principal amount of the Notes over and
above any stated interest at a rate of 0.25% per annum for the
first 90 days immediately following each such filing date,
such Additional Interest rate increasing by an additional
0.25% per annum at the beginning of each subsequent 90-day
period;
(ii) if (A) neither the Exchange Registration Statement nor the
Initial Shelf Registration is declared effective by the SEC on
or prior to the Effectiveness Date or (B) notwithstanding that
the Company has consummated or will consummate an Exchange
Offer, the Company is required to file a Shelf Registration
and such Shelf Registration is not declared effective by the
SEC on or prior to the 90th day following the date
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such Shelf Registration was filed, then, commencing on the day
after either such required effective date, Additional Interest
shall accrue on the principal amount of the Notes over and
above any stated interest at a rate of 0.25% per annum for the
first 90 days immediately following the Effectiveness Date,
such Additional Interest rate increasing by an additional
0.25% per annum at the beginning of each subsequent 90-day
period; or
(iii) if (A) the Company has not exchanged Exchange Notes for all
Notes validly tendered in accordance with the terms of the
Exchange Offer on or prior to 30 Business Days after the
Effectiveness Date or (B) if applicable, a Shelf Registration
has been declared effective and such Shelf Registration ceases
to be effective at any time prior to the second anniversary of
the Issue Date (other than such time as all Notes have been
disposed of thereunder) and is not declared effective again
within 30 days, then Additional Interest shall accrue on the
Notes, over and above any stated interest, at a rate of 0.25%
per annum of the principal amount of such Notes commencing on
(x) the 31st Business Day after the Effectiveness Date, in the
case of (A) above, or (y) the day such Shelf Registration
ceases to be effective in the case of (B) above, such
Additional Interest rate increasing by an additional 0.25% per
annum at the beginning of each such subsequent 90-day period;
provided, however, that Additional Interest will not accrue under
more than one of the foregoing clauses (i), (ii) or (iii) at any one
time; provided further, however, that the amount of Additional
Interest accruing will not exceed 1.0% per annum; provided further,
however, that (a) upon the filing of the Exchange Registration
Statement or a Shelf Registration (in the case of clause (i) above),
(b) upon the effectiveness of the Exchange Registration Statement or
an Initial Shelf Registration (in the case of clause (ii) above), or
(c) upon the exchange of Exchange Notes for all Notes tendered (in
the case of clause (iii)(A) above), or upon the effectiveness of a
Shelf Registration which had ceased to remain effective (in the case
of clause (iii)(B) above), Additional Interest on the Notes as a
result of such clause (or the relevant subclause thereof), as the
case may be, shall cease to accrue.
(b) The Company shall notify the Trustee within 3 Business Days after
each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Any
amounts of Additional Interest due pursuant to clause (a)(i),
(a)(ii) or (a)(iii) of this Section 4 will be payable in cash, on
the dates and in the manner provided in the Indenture and whether or
not any cash interest would then be payable on such date, commencing
with the first such semi-annual date occurring after any such
Additional Interest commences to accrue. The amount of Additional
Interest will be determined by multiplying the applicable Additional
Interest rate by the principal amount of the Notes, multiplied by a
fraction, the numerator of which is the number of days such
Additional Interest rate was applicable during such period
(determined on the
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basis of a 360-day year comprised of twelve 30-day months and, in
the case of a partial month, the actual number of days elapsed), and
the denominator of which is 360.
5. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement pursuant to
Sections 2 or 3 hereof, the Company shall (and shall cause each Guarantor to)
effect such registrations to permit the sale of such securities covered thereby
in accordance with the intended method or methods of disposition thereof, and
pursuant thereto and in connection with any Registration Statement filed by the
Company hereunder, the Company shall (and shall cause each Guarantor to):
(a) If (1) a Shelf Registration is filed pursuant to Section 3 or (2) a
Prospectus contained in an Exchange 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 Notes during the Applicable Period relating thereto, before
filing any Registration Statement or Prospectus or any amendments or
supplements thereto the Company shall (and shall cause each
Guarantor to), if requested, furnish to and afford the Holders of
the Registrable Notes to be registered pursuant to such Shelf
Registration Statement, each Participating Broker-Dealer, the
managing underwriters, if any, and each of their respective counsel,
a reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed (in each case
at least 5 Business Days prior to such filing). The Company and each
Guarantor shall not file any such Registration Statement or
Prospectus or any amendments or supplements thereto in respect of
which the Holders must provide information for the inclusion therein
without the Holders being afforded an opportunity to review such
documentation if the holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration
Statement, or any such Participating Broker-Dealer, as the case may
be, the managing underwriters, if any, or any of their respective
counsel shall reasonably object in writing on a timely basis. A
Holder shall be deemed to have reasonably objected to such filing if
such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains an untrue statement of
a material fact or omits to state any material fact necessary to
make the statements therein not misleading or fails to comply with
the applicable requirements of the Securities Act.
(b) Provide an indenture trustee for the Registrable Notes, the Exchange
Notes or the Private Exchange Notes, as the case may be, and cause
the Indenture (or other indenture relating to the Registrable Notes)
to be qualified under the TIA not later than the effective date of
the first Registration Statement; and in connection therewith, 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
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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.
(c) Prepare and file with the SEC such pre-effective amendments and
post-effective amendments to each Shelf Registration or Exchange
Registration Statement, as the case may be, as may be necessary to
keep such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the case may be;
cause the related Prospectus to be supplemented by any Prospectus
supplement required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with the provisions
of the Securities Act and the Exchange Act applicable to them with
respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so
supplemented and with respect to the subsequent resale of any
securities being sold by a Participating Broker-Dealer covered by
any such Prospectus. The Company and each Guarantor shall not,
during the Applicable Period, voluntarily take any action that would
result in selling Holders of the Registrable Notes covered by a
Registration Statement or Participating Broker-Dealers seeking to
sell Exchange Notes not being able to sell such Registrable Notes or
such Exchange Notes during that period, unless such action is
required by applicable law, rule or regulation or permitted by this
Agreement.
(d) Furnish to such selling Holders and Participating Broker-Dealers who
so request in writing (i) upon the Company's receipt, a copy of the
order of the SEC declaring such Registration Statement and any post
effective amendment thereto effective, (ii) such reasonable number
of copies of such Registration Statement and of each amendment and
supplement thereto (in each case including any documents
incorporated therein by reference and all exhibits), (iii) such
reasonable number of copies of the Prospectus included in such
Registration Statement (including each preliminary Prospectus) and
each amendment and supplement thereto, and such reasonable number of
copies of the final Prospectus as filed by the Company and each
Guarantor pursuant to Rule 424(b) under the Securities Act, in
conformity with the requirements of the Securities Act and each
amendment and supplement thereto, and (iv) such other documents
(including any amendments required to be filed pursuant to clause
(c) of this Section), as any such Person may reasonably request in
writing. Each of the Company and each Guarantor hereby consent to
the use of the Prospectus by each of the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the
case may be, and the underwriters or agents, if any, and dealers, if
any, in connection with the offering and sale of the Registrable
Notes covered by, or the sale by Participating Broker-Dealers of the
Exchange Notes pursuant to, such Prospectus and any amendment or
supplement thereto.
(e) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange 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 Notes during the Applicable Period relating
12
thereto, the Company shall notify in writing the selling Holders of
Registrable Notes, or each such Participating Broker-Dealer, as the
case may be, the managing underwriters, if any, and each of their
respective counsel promptly (but in any event within 2 Business
Days) (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 Prospectus or the
initiation of any proceedings for that purpose, (iii) if at any time
when a Prospectus is required by the Securities Act to be delivered
in connection with sales of the Registrable Notes the
representations and warranties of the Company and any Guarantor
contained in any agreement (including any underwriting agreement)
contemplated by Section 5(n) hereof cease to be true and correct,
(iv) of the receipt by the Company or any Guarantor of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of
the Registrable Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction,
or the initiation or threatening of any proceeding for such purpose,
(v) of the happening of any event, the existence of any condition of
any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any
changes in, or amendments or supplements to, such Registration
Statement, Prospectus or documents so that, in the case of the
Registration Statement and 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, (vi) of any reasonable determination by
the Company or any Guarantor that a post-effective amendment to a
Registration Statement would be appropriate and (vii) of any request
by the SEC for amendments to the Registration Statement or
supplements to the Prospectus or for additional information relating
thereto.
(f) 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 Prospectus or suspending the
qualification (or exemption from qualification) of any of the
Registrable Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer, for sale in any jurisdiction, and, if
any such order is issued, to use its best efforts to obtain the
withdrawal of any such order at the earliest possible date.
13
(g) If (A) a Shelf Registration is filed pursuant to Section 3, (B) a
Prospectus contained in an Exchange 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 Notes during the Applicable Period or (C) reasonably
requested in writing by the managing underwriters, if any, or the
Holders of a majority in aggregate principal amount of the
Registrable Notes being sold in connection with an underwritten
offering, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment such information or revisions to
information therein relating to such underwriters or selling Holders
as the managing underwriters, if any, or such Holders or any of
their respective counsel reasonably request in writing to be
included or made therein and (ii) make all required filings of such
Prospectus supplement or such post-effective amendment as soon as
practicable after the Company has received notification of the
matters to be incorporated in such Prospectus supplements or
post-effective amendment.
(h) Prior to any public offering of Registrable Notes or any delivery of
a Prospectus contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, use its best efforts to register or qualify,
and to cooperate with the selling Holders of Registrable Notes or
each such Participating Broker-Dealer, as the case may be, the
underwriters, if any, and their respective counsel in connection
with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Notes or Exchange
Notes, as the case may be, for offer and sale under the securities
or Blue Sky laws of such jurisdictions within the United States as
any selling Holder, Participating Broker-Dealer or any managing
underwriter or underwriters, if any, reasonably request in writing;
provided that where Exchange Notes held by Participating
Broker-Dealers or Registrable Notes are offered other than through
an underwritten offering, each of the Company and each Guarantor
agrees to cause its counsel to perform Blue Sky investigations and
file any registrations and qualifications required to be filed
pursuant to this Section 5(h), keep each such registration or
qualification (or exemption therefrom) effective during the period
such Registration Statement is required to be kept effective and do
any and all other acts or things reasonably necessary or advisable
to enable the disposition in such jurisdictions of the Exchange
Notes held by Participating Broker-Dealers or the Registrable Notes
covered by the applicable Registration Statement; provided that
neither the Company nor any Guarantor shall be required to (A)
qualify generally to do business in any jurisdiction where it is not
then so qualified, (B) take any action that would subject it to
general service of process in any such jurisdiction where it is not
then so subject or (C) subject itself to taxation in any such
jurisdiction where it is not then so subject.
(i) If (A) a Shelf Registration is filed pursuant to Section 3 or (B) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is requested to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, cooperate
14
with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Notes to be sold, which certificates shall not bear any restrictive
legends and shall be in a form eligible for deposit with The
Depository Trust Company, and enable such Registrable Notes to be in
such denominations and registered in such names as the managing
underwriter or underwriters, if any, or Holders may reasonably
request.
(j) Use its best efforts to cause the Registrable Notes covered by any
Registration Statement to be registered with or approved by such
governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof or the underwriter, if any, to
consummate the disposition of such Registrable Notes, except as may
be required solely as a consequence of the nature of such selling
Holder's business, in which case the Company shall (and shall cause
each Guarantor to) cooperate in all reasonable respects with the
filing of such Registration Statement and the granting of such
approvals; provided that neither the Company nor any existing
Guarantor shall be required to (A) qualify generally to do business
in any jurisdiction where it is not then so qualified, (B) take any
action that would subject it to general service of process in any
jurisdiction where it is not then so subject or (C) subject itself
to taxation in any such jurisdiction where it is not then so
subject.
(k) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange 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 Notes during the Applicable Period, upon the occurrence of
any event contemplated by paragraph 5(e)(v) or 5(e)(vi) hereof, as
promptly as practicable, prepare and file with the SEC, at the
expense of the Company and the Guarantors, a supplement or
post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, or file any other
required document so that, as thereafter delivered to the purchasers
of the Registrable Notes being sold thereunder or to the purchasers
of the Exchange Notes to whom such Prospectus will be delivered by a
Participating Broker-Dealer, 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, and, if SEC review is required, use its best efforts
to cause such post-effective amendment to be declared effective as
soon as possible.
(l) Use its best efforts to cause the Registrable Notes covered by a
Registration Statement to be rated with such appropriate rating
agencies, if so requested in writing by the Holders of a majority in
aggregate principal amount of the Registrable Notes covered by such
Registration Statement or the managing underwriter or underwriters,
if any.
15
(m) Prior to the initial issuance of the Exchange Notes, (i) provide the
Trustee with one or more certificates for the Registrable Notes in a
form eligible for deposit with The Depository Trust Company and (ii)
provide a CUSIP number for the Exchange Notes.
(n) If a Shelf Registration is filed pursuant to Section 3, enter into
such agreements (including an underwriting agreement in form, scope
and substance as is customary in underwritten offerings of debt
securities similar to the Notes, as may be appropriate in the
circumstances) and take all such other actions in connection
therewith (including those reasonably requested in writing by the
managing underwriters, if any, or the Holders of a majority in
aggregate principal amount of the Registrable Notes being sold) in
order to expedite or facilitate the registration or the disposition
of such Registrable Notes, and in such connection, whether or not an
underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, (i) make such
representations and warranties to the Holders and the underwriters,
if any, with respect to the business of the Company and its
subsidiaries as then conducted, and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, in form, substance
and scope as are customarily made by issuers to underwriters in
underwritten offerings of debt securities similar to the Notes, as
may be appropriate in the circumstances, and confirm the same if and
when reasonably required; (ii) obtain an opinion of counsel to the
Company and the Guarantors and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and the Holders
of a majority in aggregate principal amount of the Registrable Notes
being sold), addressed to each selling Holder and each of the
underwriters, if any, covering the matters customarily covered in
opinions of counsel to the Company and the Guarantors requested in
underwritten offerings of debt securities similar to the Notes, as
may be appropriate in the circumstances; (iii) obtain "cold comfort"
letters and updates thereof (which letters and updates (in form,
scope and substance) shall be reasonably satisfactory to the
managing underwriters) from the independent certified public
accountants of the Company and the Guarantors (and, if necessary,
any other independent certified public accountants of any subsidiary
of the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be,
included 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 of debt securities similar to
the Notes, as may be appropriate in the circumstances, and such
other matters as reasonably requested in writing by the
underwriters; and (iv) deliver such documents and certificates as
may be reasonably requested in writing by the Holders of a majority
in aggregate principal amount of the Registrable Notes being sold
and the managing underwriters, if any, to evidence the continued
validity of the representations and warranties of the Company and
its subsidiaries made pursuant to clause (i) above and to evidence
compliance with any conditions contained in the underwriting
agreement or other similar agreement entered into by the Company or
the Guarantor.
16
(o) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange 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 Notes during the Applicable Period, make available for
inspection by any selling Holder of such Registrable Notes being
sold, or each such Participating Broker-Dealer, as the case may be,
any underwriter participating in any such disposition of Registrable
Notes, if any, and any attorney, accountant or other agent retained
by any such selling Holder or each such Participating Broker-Dealer,
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 and pertinent corporate
documents of the Company and its subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them to
exercise any applicable due diligence responsibilities, and cause
the officers, directors and employees of the Company and its
subsidiaries to supply all information reasonably requested in
writing by any such Inspector in connection with such Registration
Statement. Each Inspector shall agree in writing that it will keep
the Records confidential and not disclose any of the Records 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, (iii) the information
in such Records is public or has been made generally available to
the public other than as a result of a disclosure or failure to
safeguard by such Inspector or (iv) disclosure of such information
is, in the reasonable written opinion of counsel for any Inspector,
necessary or advisable in connection with any action, claim, suit or
proceeding, directly or indirectly, involving or potentially
involving such Inspector and arising out of, based upon, related to,
or involving this Agreement, or any transaction contemplated hereby
or arising hereunder. Each selling Holder of such Registrable Notes
and each such Participating Broker-Dealer will be required to agree
that information obtained by it as a result of such inspections
shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the Company
unless and until such is made generally available to the public.
Each Inspector, each selling Holder of such Registrable Notes and
each such Participating Broker-Dealer will be required to further
agree that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to the
Company and, to the extent practicable, use its reasonable best
efforts to allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of the Records deemed
confidential at its expense.
(p) Comply with all applicable rules and regulations of the SEC and make
generally available to the security holders of the Company with
regard to any Applicable Registration Statement earning statements
satisfying the provisions of section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which
17
Registrable Notes are sold to underwriters in a firm commitment or
best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods.
(q) Upon consummation of an Exchange Offer or Private Exchange, obtain
an opinion of counsel to the Company and the Guarantors (in form,
scope and substance reasonably satisfactory to the Initial
Purchaser), addressed to the Trustee for the benefit of all Holders
participating in the Exchange Offer or Private Exchange, as the case
may be, to the effect that (i) the Company and the Guarantors have
duly authorized, executed and delivered the Exchange Notes or the
Private Exchange Notes, as the case may be, and the Indenture and
(ii) the Exchange Notes or the Private Exchange Notes, as the case
may be, and the Indenture constitute legal, valid and binding
obligations of the Company and the Guarantors, enforceable against
the Company and the Guarantors in accordance with their respective
terms, except as such enforcement may be subject to customary United
States and foreign exceptions.
(r) If the Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Notes by the Holders to the Company
and the Guarantors (or to such other Person as directed by the
Company and the Guarantors) in exchange for the Exchange Notes or
the Private Exchange Notes, as the case may be, the Company and the
Guarantors shall xxxx, or cause to be marked, on such Registrable
Notes that the Exchange Notes or the Private Exchange Notes, as the
case may be, are being issued as substitute evidence of the
indebtedness originally evidenced by the Registrable Notes; provided
that in no event shall such Registrable Notes be marked as paid or
otherwise satisfied.
(s) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating
in the disposition of such Registrable Notes and their respective
counsel in connection with any filings required to be made with the
NASD.
(t) Use its best efforts to cause all Securities covered by a
Registration Statement to be listed on each securities exchange, if
any, on which similar debt securities issued by the Company are then
listed.
(u) Use its best efforts to take all other steps reasonably necessary to
effect the registration of the Registrable Notes covered by a
Registration Statement contemplated hereby.
(v) The Company may require each seller of Registrable Notes or
Participating Broker-Dealer as to which any registration is being
effected to furnish to the Company such information regarding such
seller or Participating Broker-Dealer and the distribution of such
Registrable Notes as the Company may, from time to time, reasonably
request in writing. The Company may exclude from such
18
registration the Registrable Notes of any seller who fails to
furnish such information within a reasonable time (which time in no
event shall exceed 45 days) after receiving such request. Each
seller of Registrable Notes or Participating Broker-Dealer as to
which any registration is being effected agrees to furnish promptly
to the Company all information required to be disclosed in order to
make the information previously furnished by such seller not
materially misleading.
(w) Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or
Exchange Notes to be sold by such Participating Broker-Dealer, as
the case may be, that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section
5(e)(2)(ii), 5(e)(2)(iii), 5(e)(2)(iv), 5(e)(2)(v), or 5(e)(2)(vi),
such Holder will forthwith discontinue disposition of such
Registrable Notes covered by a Registration Statement and such
Participating Broker-Dealer will forthwith discontinue disposition
of such Exchange Notes pursuant to any Prospectus and, in each case,
forthwith discontinue dissemination of such Prospectus until such
Holder's or Participating Broker-Dealer's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 5(k),
or until it is advised in writing (the "Advice") by the Company and
the Guarantors that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements
thereto and, if so directed by the Company and the Guarantors, such
Holder or Participating Broker-Dealer, as the case may be, will
deliver to the Company all copies, other than permanent file copies,
then in such Holder's or Participating Broker-Dealer's possession,
of the Prospectus covering such Registrable Notes current at the
time of the receipt of such notice. In the event the Company and the
Guarantors shall give any such notice, the Applicable Period shall
be extended by the number of days during such periods from and
including the date of the giving of such notice to and including the
date when each Participating Broker-Dealer shall have received (x)
the copies of the supplemented or amended Prospectus contemplated by
Section 5(k) or (y) the Advice.
6. REGISTRATION EXPENSES
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Company and the Guarantors shall be borne
by the Company and the Guarantors, 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 any underwritten offering and
(B) fees and expenses of compliance with state securities or Blue
Sky laws as provided in Section 5(h) hereof (including, without
limitation, reasonable fees and disbursements of counsel in
connection with Blue Sky qualifications of the Registrable Notes or
Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of
such jurisdictions (x) where the Holders are located, in the case of
the Exchange Notes,
19
or (y) as provided in Section 5(h), in the case of Registrable Notes
or Exchange Notes to be sold by a Participating Broker-Dealer during
the Applicable Period)), (ii) printing expenses, including, without
limitation, expenses of printing Prospectuses if the printing of
Prospectuses is requested by the managing underwriter or
underwriters, if any, or by the Holders of a majority in aggregate
principal amount of the Registrable Notes included in any
Registration Statement or by any Participating Broker-Dealer during
the Applicable Period, as the case may be, (iii) messenger,
telephone and delivery expenses incurred in connection with the
performance of their obligations hereunder, (iv) fees and
disbursements of counsel for the Company, the Guarantors and,
subject to Section 6(b), the Holders, (v) fees and disbursements of
all independent certified public accountants referred to in Section
5 (including, without limitation, the expenses of any special audit
and "cold comfort" letters required by or incident to such
performance), (vi) rating agency fees and the fees and expenses
incurred in connection with the listing of the Securities to be
registered on any securities exchange, (vii) Securities Act
liability insurance, if the Company and the Guarantors desire such
insurance, (viii) fees and expenses of all other Persons retained by
the Company and the Guarantors, (ix) fees and expenses of any
"qualified independent underwriter" or other independent appraiser
participating in an offering pursuant to Section 3 of Schedule E to
the By-laws of the NASD, but only where the need for such a
"qualified independent underwriter" arises due to a relationship
with the Company and the Guarantors, (x) internal expenses of the
Company and the Guarantors (including, without limitation, all
salaries and expenses of officers and employees of the Company or
the Guarantors performing legal or accounting duties), (xi) the
expense of any annual audit, (xii) the fees and expenses of the
Trustee and the Exchange Agent and (xiii) the expenses relating to
printing, word processing and distributing all Registration
Statements, underwriting agreements, securities sales agreements,
indentures and any other documents necessary in order to comply with
this Agreement.
(b) The Company and the Guarantors shall reimburse the Holders for the
reasonable fees and disbursements of not more than one counsel
chosen by the Holders of a majority in aggregate principal amount of
the Registrable Notes to be included in any Registration Statement.
The Company and the Guarantors shall pay all documentary, stamp,
transfer or other transactional taxes attributable to the issuance
or delivery of the Exchange Notes or Private Exchange Notes in
exchange for the Notes; provided that the Company shall not be
required to pay taxes payable in respect of any transfer involved in
the issuance or delivery of any Exchange Note or Private Exchange
Note in a name other than that of the Holder of the Note in respect
of which such Exchange Note or Private Exchange Note is being
issued. The Company and the Guarantors shall reimburse the Holders
for fees and expenses (including reasonable fees and expenses of
counsel to the Holders) relating to any enforcement of any rights of
the Holders under this Agreement.
20
7. INDEMNIFICATION
(a) Indemnification by the Company and the Guarantors. The Company and
the Guarantors jointly and severally agree to indemnify and hold
harmless each Holder of Registrable Notes, Exchange Notes or Private
Exchange Notes and each Participating Broker-Dealer selling Exchange
Notes during the Applicable Period, each Person, if any, who
controls each such Holder (within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act) and the
officers, directors and partners of each such Holder, Participating
Broker-Dealer and controlling person, to the fullest extent lawful,
from and against any and all losses, claims, damages, liabilities,
costs (including, without limitation, reasonable costs of
preparation and reasonable attorneys' fees as provided in this
Section 7) and expenses (including, without limitation, reasonable
costs and expenses incurred in connection with investigating,
preparing, pursuing or defending against any of the foregoing)
(collectively, "Losses"), as incurred, directly or indirectly caused
by, related to, based upon, arising out of or in connection with any
untrue or alleged untrue statement of a material fact contained in
any Registration Statement, Prospectus or form of prospectus, or in
any amendment or supplement thereto, or in any preliminary
prospectus, or 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, but only to the extent, that such Losses
are finally judicially determined by a court of competent
jurisdiction in a final, unappealable order, except insofar as such
Losses are solely based upon information relating to such Holder or
Participating Broker-Dealer and furnished in writing to the Company
and the Guarantors (or reviewed and approved in writing) by such
Holder or Participating Broker-Dealer or their counsel expressly for
use therein; provided, however, that the Company and the Guarantors
will not be liable to any Indemnified Party (as defined below) under
this Section 7 to the extent Losses were solely caused by an untrue
statement or omission or alleged untrue statement or omission that
was contained or made in any preliminary prospectus and corrected in
the Prospectus or any amendment or supplement thereto if (i) the
Prospectus does not contain any other untrue statement or omission
or alleged untrue statement or omission of a material fact that was
the subject matter of the related proceeding, (ii) any such Losses
resulted from an action, claim or suit by any Person who purchased
Registrable Notes or Exchange Notes which are the subject thereof
from such Indemnified Party and (iii) it is established in the
related proceeding that such Indemnified Party failed to deliver or
provide a copy of the Prospectus (as amended or supplemented) to
such Person with or prior to the confirmation of the sale of such
Registrable Notes or Exchange Notes sold to such Person if required
by applicable law, unless such failure to deliver or provide a copy
of the Prospectus (as amended or supplemented) was a result of
noncompliance by the Company with Section 5 of this Agreement. The
Company and the Guarantors also agree to indemnify underwriters,
selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, their officers,
directors, agents and employees and each Person who controls such
Persons (within the meaning of
21
Section 5 of the Securities Act or Section 20(a) of the Exchange
Act) to the same extent as provided above with respect to the
indemnification of the Holders or the Participating Broker-Dealer.
(b) Indemnification by Holder. In connection with any Registration
Statement, Prospectus or form of prospectus, any amendment or
supplement thereto, or any preliminary prospectus in which a Holder
is participating, such Holder shall furnish to the Company and the
Guarantors in writing such information as the Company and the
Guarantors reasonably request for use in connection with any
Registration Statement, Prospectus or form of prospectus, any
amendment or supplement thereto, or any preliminary prospectus and
shall indemnify and hold harmless the Company, the Guarantors, their
respective directors and each Person, if any, who controls the
Company and the Guarantors (within the meaning of Section 15 of the
Securities Act and Section 20(a) of the Exchange Act), and the
directors, officers and partners of such controlling persons, to the
fullest extent lawful, from and against all Losses arising out of or
based upon any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or form of
prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading to the extent, but only
to the extent, that such losses are finally judicially determined by
a court of competent jurisdiction in a final, unappealable order to
have resulted solely from an untrue statement or alleged untrue
statement of a material fact or omission or alleged omission of a
material fact contained in or omitted from any information so
furnished in writing by such Holder to the Company and the
Guarantors expressly for use therein. Notwithstanding the foregoing,
in no event shall the liability of any selling Holder be greater in
amount than such Holder's Maximum Contribution Amount (as defined
below).
(c) Conduct of Indemnification Proceedings. If any proceeding shall be
brought or asserted against any Person entitled to indemnity
hereunder (an "Indemnified Party"), such Indemnified Party shall
promptly notify the party or parties from which such indemnity is
sought (the "Indemnifying Party" or "Indemnifying Parties", as
applicable) in writing; provided, that the failure to so notify the
Indemnifying Parties shall not relieve the Indemnifying Parties from
any obligation or liability except to the extent (but only to the
extent) that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal) that the
Indemnifying Parties have been prejudiced materially by such
failure.
The Indemnifying Party shall have the right, exercisable by giving written
notice to an Indemnified Party, within 20 Business Days after receipt of written
notice from such Indemnified Party of such proceeding, to assume, at its
expense, the defense of any such proceeding, provided, that an Indemnified Party
shall have the right to employ separate counsel in any such proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party or parties unless: (1) the
Indemnifying Party
22
has agreed to pay such fees and expenses; or (2) the Indemnifying Party shall
have failed promptly to assume the defense of such proceeding or shall have
failed to employ counsel reasonably satisfactory to such Indemnified Party; or
(3) the named parties to any such proceeding (including any impleaded parties)
include both such Indemnified Party and the Indemnifying Party or any of its
affiliates or controlling persons, and such Indemnified Party shall have been
advised by counsel that there may be one or more defenses available to such
Indemnified Party that are in addition to, or in conflict with, those defenses
available to the Indemnifying Party or such affiliate or controlling person (in
which case, if such Indemnified Party notifies the Indemnifying Parties in
writing that it elects to employ separate counsel at the expense of the
Indemnifying Parties, the Indemnifying Parties shall not have the right to
assume the defense and the reasonable fees and expenses of such counsel shall be
at the expense of the Indemnifying Party; it being understood, however, that,
the Indemnifying Party shall not, in connection with any one such proceeding or
separate but substantially similar or related proceedings 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
(together with appropriate local counsel) at any time for such Indemnified
Party).
No Indemnifying Party shall be liable for any settlement of any such
proceeding effected without its written consent, which shall not be unreasonably
withheld, but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such proceeding, each Indemnifying Party
jointly and severally agrees, subject to the exceptions and limitations set
forth above, to indemnify and hold harmless each Indemnified Party from and
against any and all Losses by reason of such settlement or judgment. The
Indemnifying Party shall not consent to the entry of any judgment or enter into
any settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to each Indemnified Party of a release, in form and
substance reasonably satisfactory to the Indemnified Party, from all liability
in respect of such proceeding for which such Indemnified Party would be entitled
to indemnification hereunder (whether or not any Indemnified Party is a party
thereto).
(d) Contribution. If the indemnification provided for in this Section 7
is unavailable to an Indemnified Party or is insufficient to hold
such Indemnified Party harmless for any Losses in respect of which
this Section 7 would otherwise apply by its terms (other than by
reason of exceptions provided in this Section 7), then each
applicable Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall have a joint and several obligation to
contribute to the amount paid or payable by such Indemnified Party
as a result of such Losses, in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party, on the one
hand, and such Indemnified Party, on the other hand, in connection
with the actions, statements or omissions that resulted in such
Losses as well as any other relevant equitable considerations. The
relative fault of such Indemnifying Party, on the one hand, and
Indemnified Party, on the other hand, shall be determined by
reference to, among other things, whether any untrue or alleged
untrue statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by such
Indemnifying Party or Indemnified Party, and the parties' relative
intent, knowledge, access to information and opportunity to correct
or prevent any such statement or omission. The amount paid or
payable by an Indemnified Party as a result of any Losses shall be
deemed to include any
23
legal or other fees or expenses incurred by such party in connection
with any proceeding, to the extent such party would have been
indemnified for such fees or expenses if the indemnification
provided for in Section 7(a) or 7(b) was available to such party.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 7(d), a selling Holder shall not
be required to contribute, in the aggregate, any amount in excess of such
Holder's Maximum Contribution Amount. A selling Holder's "Maximum Contribution
Amount" shall equal the excess of (i) the aggregate proceeds received by such
Holder pursuant to the sale of such Registrable Notes or Exchange Notes over
(ii) the aggregate amount of damages that such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 7(d) are several in proportion to the respective principal amount of the
Registrable Securities held by each Holder hereunder and not joint. The
Company's and the Guarantors' obligations to contribute pursuant to this Section
7(d) are joint and several.
The indemnity and contribution agreements contained in this Section 7 are
in addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
8. RULES 144 AND 144A
The Company covenants that it shall (a) file the reports required to be
filed by it (if so required) under the Securities Act and the Exchange Act in a
timely manner and, if at any time the Company is not required to file such
reports, it will, upon the written request of any Holder of Registrable Notes,
make publicly available other information necessary to permit sales pursuant to
Rule 144 and 144A and (b) take such further action as any Holder may reasonably
request in writing, all to the extent required from time to time to enable such
Holder to sell Registrable Notes without registration under the Securities Act
pursuant to the exemptions provided by Rule 144 and Rule 144A. Upon the request
of any Holder, the Company shall deliver to such Holder a written statement as
to whether it has complied with such information and requirements.
9. UNDERWRITTEN REGISTRATIONS OF REGISTRABLE NOTES
If any of the Registrable Notes covered by any Shelf Registration is to be
sold in an underwritten offering, the investment banker or investment bankers
and manager or managers that will manage the offering will be selected by the
Holders of a majority in aggregate principal amount of such Registrable Notes
included in such offering; provided, however, that such investment banker or
investment bankers and manager or managers must be reasonably acceptable to the
Company.
24
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
10. MISCELLANEOUS
(a) Remedies. In the event of a breach by either the Company or any of
the Guarantors of any of their respective obligations under this
Agreement, each Holder, 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. The Company and the
Guarantors agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by either
the Company or any of the Guarantors 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, the
Company shall (and shall cause each Guarantor to) waive the defense
that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company and each of the Guarantors
have not entered, as of the date hereof, and the Company and each of
the Guarantors shall not enter, after the date of this Agreement,
into any agreement with respect to any of its securities that is
inconsistent with the rights granted to the Holders of Securities in
this Agreement or otherwise conflicts with the provisions hereof.
The Company and each of the Guarantors have not entered and will not
enter into any agreement with respect to any of its securities that
will grant to any Person piggy-back rights with respect to a
Registration Statement.
(c) Adjustments Affecting Registrable Notes. The Company shall not,
directly or indirectly, take any action with respect to the
Registrable Notes as a class that would adversely affect the ability
of the Holders to include such Registrable Notes in a registration
undertaken pursuant to this Agreement.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise
than with the prior written consent of the Holders of not less than
a majority in aggregate principal amount of the then outstanding
Registrable Notes in circumstances that would adversely affect any
Holders of Registrable Notes; provided, however, that Section 7 and
this Section 10(d) may not be amended, modified or supplemented
without the prior written consent of each Holder. Notwithstanding
the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the
rights of Holders of Registrable Notes whose securities are being
tendered pursuant to the Exchange Offer or sold pursuant to a Notes
25
Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other Holders of
Registrable Notes may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being tendered
or being sold by such Holders pursuant to such Notes Registration
Statement.
(e) Notices. All notices and other communications 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 Securities or to any Participating
Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, set forth on
the records of the registrar of the Notes, with a copy in like
manner to the Initial Purchaser as follows:
Xxxxxxxxx & Company, Inc.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
with a copy to:
Mayer, Brown, Xxxx & Maw LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
(ii) if to the Initial Purchaser, at the address specified in
Section 10(e)(1);
(iii) if to the Company or the Guarantors as follows:
Hawk Corporation
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxx 00000-0000
Attn: Vice President - Finance
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxx P.L.L.
0000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxx X. Xxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the United
26
States mail, postage prepaid, if mailed, one business day after being deposited
in the United States mail, postage prepaid, if mailed; one business day after
being timely delivered to a next-day air courier guaranteeing overnight
delivery; 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.
(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 hereto,
including, without limitation and without the need for an express
assignment, subsequent Holders of Securities.
(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; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL. THE
VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND
CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE COMPANY AND EACH GUARANTOR HEREBY EXPRESSLY
AND IRREVOCABLY (I) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE
FEDERAL AND STATE COURTS SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY
OF NEW YORK IN ANY SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY; AND (II) WAIVES (A)
ITS RIGHT TO A TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO
THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF THE INITIAL PURCHASER AND FOR ANY COUNTERCLAIM RELATED TO ANY
OF THE FOREGOING AND (B) ANY OBLIGATION WHICH IT MAY HAVE OR HEREAFTER MAY
HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH
COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
ANY HOLDER TO SERVE PROCESS
27
IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE COMPANY OR THE GUARANTORS IN ANY OTHER
JURISDICTION.
(j) 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, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(k) Securities Held by the Company or Its Affiliates. Whenever the consent or
approval of Holders of a specified percentage of Securities is required
hereunder, Securities held by the Company or its 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.
(l) Third Party Beneficiaries. Holders and Participating Broker-Dealers are
intended third party beneficiaries of this Agreement and this Agreement
may be enforced by such Persons.
(m) Entire Agreement. This Agreement, together with the Purchase Agreement,
the Notes and the Indenture, is intended by the parties as a final and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein and therein and
any and all prior oral or written agreements, representations, or
warranties, contracts, understanding, correspondence, conversations and
memoranda between the Initial Purchaser on the one hand and the Company
and the Guarantors on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in
interest or successors in interest with respect to the subject matter
hereof and thereof are merged herein and replaced hereby.
28
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
HAWK CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board, Chief
Executive Officer and President
FRICTION PRODUCTS CO.
as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
XXXXX METAL STAMPINGS, INC.
as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
XXXXXX, INC.
as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
REGISTRATION RIGHTS AGREEMENT
X.X. XXXXXXX HOLDINGS, INC.
as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
X.X. XXXXXXX CORP. as a
Guarantor
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
ALLEGHENY CLEARFIELD, INC.
as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
HAWK MIM, INC.
as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
HAWK MOTORS, INC.
as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
REGISTRATION RIGHTS AGREEMENT
HAWK PRECISION COMPONENTS
GROUP, INC.
as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
NET SHAPE TECHNOLOGIES LLC
as a Guarantor
HAWK MIM, INC.,
Sole Member
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
QUARTER MASTER INDUSTRIES, INC.
as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
SINTERLOY CORPORATION
as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
REGISTRATION RIGHTS AGREEMENT
TEX RACING ENTERPRISES, INC.
as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
XXXXXXX PRODUCTS GROUP, INC.
as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
XXXXXXX PRODUCTS, LLC
as a Guarantor
XXXXXXX PRODUCTS GROUP, INC.,
Sole Member
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
Accepted and Agreed to:
XXXXXXXXX & COMPANY, INC.
By: /s/ Xxxx X. Xxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
REGISTRATION RIGHTS AGREEMENT
