Exhibit 4.15
Airgas, Inc.
6¼% Senior Subordinated
Notes due 2014
unconditionally guaranteed as to
the
payment of principal, premium, if
any, and interest by the Guarantors
named in Schedule I
hereto
Exchange and Registration
Rights Agreement
March
8, 2004
Banc of America Securities LLC
Goldman, Sachs & Co.
As representatives of
the several Purchasers
named in Schedule I to
the Purchase Agreement
c/o Banc of America Securities LLC
9 West 57 th Street
New York, New York 10019
Ladies and Gentlemen:
Airgas, Inc., a Delaware corporation
(the “Company”), proposes to issue and sell to the
Purchasers (as defined herein) upon the terms set forth in the
Purchase Agreement (as defined herein) its 6¼% Senior
Subordinated Notes due 2014, which are guaranteed by the Guarantors
named in Schedule I hereto. As an inducement to the Purchasers to
enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Purchasers thereunder, the
Company agrees with the Purchasers for the benefit of holders (as
defined herein) from time to time of the Registrable Securities (as
defined herein) as follows:
1. Certain Definitions . For
purposes of this Exchange and Registration Rights Agreement, the
following terms shall have the following respective
meanings:
“Base
Interest” shall
mean the interest that would otherwise accrue on the Securities
under the terms thereof and the Indenture, without giving effect to
the provisions of this Agreement.
The term
“broker-dealer” shall mean any broker or dealer
registered with the Commission under the Exchange Act.
“Closing
Date” shall mean
the date on which the Securities are initially issued pursuant to
the Purchase Agreement.
“Commission” shall mean the United States Securities and
Exchange Commission, or any other federal agency at the time
administering the Exchange Act or the Securities Act, whichever is
the relevant statute for the particular purpose.
“Effective
Time,” in the case
of (i) an Exchange Registration, shall mean the time and date as of
which the Commission declares the Exchange Registration Statement
effective or as of which the Exchange Registration Statement
otherwise becomes effective and (ii) a Shelf Registration, shall
mean the time and date as of which the Commission declares the
Shelf Registration Statement effective or as of which the Shelf
Registration Statement otherwise becomes effective.
“ Electing Holder
” shall mean any holder of Registrable Securities that has
returned a completed and signed Notice and Questionnaire to the
Company in accordance with Section 3(d)(ii) or 3(d)(iii)
hereof.
“Exchange
Act” shall mean the
Securities Exchange Act of 1934, or any successor thereto, as the
same shall be amended from time to time.
“Exchange
Offer” shall have
the meaning assigned thereto in Section 2(a) hereof.
“Exchange
Registration” shall
have the meaning assigned thereto in Section 3(c)
hereof.
“Exchange Registration
Statement” shall
have the meaning assigned thereto in Section 2(a)
hereof.
“Exchange
Securities” shall
have the meaning assigned thereto in Section 2(a)
hereof.
“Guarantors” shall have the meaning assigned thereto in the
Indenture.
The term “holder”
shall mean each of the Purchasers and other persons who acquire
Registrable Securities from time to time (including any successors
or assigns), in each case for so long as such person owns any
Registrable Securities.
“Indenture” shall mean the Indenture, dated as of March 8,
2004, among the Company, each of the Guarantors and The Bank of New
York, as Trustee, as the same shall be amended from time to
time.
“Liquidated
Damages” shall have
the meaning assigned thereto in Section 2(c) hereof.
“ Notice and
Questionnaire ” means a Notice of Registration Statement
and Selling Securityholder Questionnaire substantially in the form
of Exhibit A hereto.
The term “person”
shall mean a corporation, association, partnership, organization,
business, individual, government or political subdivision thereof
or governmental agency.
“Purchase
Agreement” shall
mean the Purchase Agreement, dated as of March 3, 2004, between the
Purchasers and the Company relating to the Securities.
“Purchasers” shall mean the Purchasers named in Schedule I to
the Purchase Agreement.
“Registrable
Securities” shall
mean the Securities; provided, however, that a Security
shall cease to be a Registrable Security when (i) in the
circumstances contemplated by Section 2(a) hereof, the Security has
been exchanged for an Exchange Security in an Exchange Offer as
contemplated in Section 2(a) hereof ( provided that any
Exchange Security that, pursuant to the last two sentences of
Section 2(a), is included in a prospectus for use in connection
with resales by broker-dealers shall be deemed to be a Registrable
Security with respect to Sections 5, 6 and 9 until resale of such
Registrable Security has been effected within the 90-day period
referred to in Section 2(a)); (ii) in the circumstances
contemplated by Section 2(b) hereof, a Shelf Registration Statement
registering such
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Security under the Securities Act
has been declared or becomes effective and such Security has been
sold or otherwise transferred by the holder thereof pursuant to and
in a manner contemplated by such effective Shelf Registration
Statement; (iii) such Security is sold pursuant to Rule 144 (or any
successor provision) under circumstances in which any legend borne
by such Security relating to restrictions on transferability
thereof, under the Securities Act or otherwise, is removed by the
Company or pursuant to the Indenture; (iv) such Security is
eligible to be sold pursuant to paragraph (k) of Rule 144; or (v)
such Security shall cease to be outstanding.
“Registration
Default” shall have
the meaning assigned thereto in Section 2(c) hereof.
“Registration
Expenses” shall
have the meaning assigned thereto in Section 4 hereof.
“Resale
Period” shall have
the meaning assigned thereto in Section 2(a) hereof.
“Restricted
Holder” shall mean
(i) a holder that is an affiliate of the Company within the meaning
of Rule 405, (ii) a holder who acquires Exchange Securities outside
the ordinary course of such holder’s business, (iii) a holder
who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of a distribution
(within the meaning of the Securities Act) of the Exchange
Securities and (iv) a holder that is a broker-dealer, but only with
respect to Exchange Securities received by such broker-dealer
pursuant to an Exchange Offer in exchange for Registrable
Securities acquired by the broker-dealer directly from the
Company.
“Rule 144,”
“Rule 405” and “Rule 415”
shall mean, in each case, such rule
promulgated under the Securities Act (or any successor provision),
as the same shall be amended from time to time.
“Securities” shall mean, collectively, the 6¼% Senior
Subordinated Notes due 2014 of the Company to be issued and sold to
the Purchasers, and securities issued in exchange therefor or in
lieu thereof pursuant to the Indenture. Each Security is entitled
to the benefit of the guarantees provided for in the Indenture (the
“Guarantees”) and, unless the context otherwise
requires, any reference herein to a “Security,” and
“Exchange Security” or a “Registrable
Security” shall include a reference to the related
Guarantees.
“Securities
Act” shall mean the
Securities Act of 1933, or any successor thereto, as the same shall
be amended from time to time.
“Shelf
Registration” shall
have the meaning assigned thereto in Section 2(b)
hereof.
“Shelf Registration
Statement” shall
have the meaning assigned thereto in Section 2(b)
hereof.
“Trust Indenture
Act” shall mean the
Trust Indenture Act of 1939, or any successor thereto, and the
rules, regulations and forms promulgated thereunder, all as the
same shall be amended from time to time.
Unless the context otherwise
requires, any reference herein to a “Section” or
“clause” refers to a Section or clause, as the case may
be, of this Exchange and Registration Rights Agreement, and the
words “herein,” “hereof” and
“hereunder” and other words of similar import refer to
this Exchange and Registration Rights Agreement as a whole and not
to any particular Section or other subdivision.
2. Registration Under the
Securities Act .
(a) Except as set forth in Section
2(b) below, the Company agrees to file under the Securities Act, as
soon as practicable, but no later than 90 days after the Closing
Date, a registration statement
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relating to an offer to exchange
(such registration statement, the “Exchange Registration
Statement”, and such offer, the “Exchange Offer”)
any and all of the Securities for a like aggregate principal amount
of debt securities issued by the Company and guaranteed by each of
the Guarantors, which debt securities and guarantees are
substantially identical to the Securities and the Guarantees,
respectively (and are entitled to the benefits of a trust indenture
which is substantially identical to the Indenture or is the
Indenture and which has been qualified under the Trust Indenture
Act), except that they have been registered pursuant to an
effective registration statement under the Securities Act and do
not contain provisions for the additional interest contemplated in
Section 2(c) below (such new debt securities hereinafter called
“Exchange Securities”). The Company agrees to use its
reasonable best efforts to cause the Exchange Registration
Statement to become effective under the Securities Act as soon as
practicable, but no later than 180 days after the Closing Date. The
Exchange Offer will be registered under the Securities Act on the
appropriate form and will comply with all applicable tender offer
rules and regulations under the Exchange Act. The Company further
agrees to use its reasonable best efforts to commence and complete
the Exchange Offer promptly, but no later than 30 business days
after such registration statement has become effective, hold the
Exchange Offer open for at least 20 business days and exchange
Exchange Securities for all Registrable Securities that have been
properly tendered and not withdrawn on or prior to the expiration
of the Exchange Offer. The Exchange Offer will be deemed to have
been “completed” only if the debt securities received
by holders other than Restricted Holders in the Exchange Offer for
Registrable Securities are, upon receipt, transferable by each such
holder without need for further compliance with Section 5 of the
Securities Act (except for the requirement to deliver a prospectus
included in the Exchange Registration Statement applicable to
resales by broker-dealers of Exchange Securities received by such
broker-dealer pursuant to an Exchange Offer in exchange for
Registrable Securities other than those acquired by the
broker-dealer directly from the Company) and without material
restrictions under the blue sky or securities laws of a substantial
majority of the States of the United States of America. The
Exchange Offer shall be deemed to have been completed upon the
earlier to occur of (i) the Company having exchanged the Exchange
Securities for all outstanding Registrable Securities pursuant to
the Exchange Offer and (ii) the Company having exchanged, pursuant
to the Exchange Offer, Exchange Securities for all Registrable
Securities that have been properly tendered and not withdrawn
before the expiration of the Exchange Offer, which shall be on a
date that is at least 30 days following the commencement of the
Exchange Offer. The Company agrees (x) to include in the Exchange
Registration Statement a prospectus for use in any resales by any
holder of Exchange Securities that is a broker-dealer (where such
Exchange Security was received by a broker-dealer in an Exchange
Offer in exchange for a Registrable Security that was acquired by
such broker-dealer for its own account as a result of market-making
or other trading activities, so long as such Registrable Security
was not acquired directly from the Company or an affiliate of the
Company) and (y) to keep such Exchange Registration Statement
effective for a period (the “Resale Period”) beginning
when Exchange Securities are first issued in the Exchange Offer and
ending upon the earlier of the expiration of the 120th day after
the Exchange Offer has been completed or such time as such
broker-dealers no longer own any Registrable Securities. With
respect to such Exchange Registration Statement, such holders shall
have the benefit of the rights of indemnification and contribution
set forth in Sections 6(a), (c), (d) and (e) hereof.
(b) If (i) on or prior to the time
the Exchange Offer is completed existing Commission interpretations
are changed such that the debt securities or the related guarantees
received by holders other than Restricted Holders in the Exchange
Offer for Registrable Securities are not or would not be, upon
receipt, transferable by each such holder without need for further
compliance with Section 5 of the Securities Act (except for the
requirement to deliver a prospectus included in the Exchange
Registration Statement applicable to resales by broker-dealers of
Exchange Securities received by such broker-dealer pursuant to an
Exchange Offer in exchange for Registrable Securities that were
acquired by such broker-dealer for its own account as a result of
market-making or other trading activities, so long as such
Registrable Security was not acquired directly from the Company or
an
4
affiliate of the Company), (ii) the
Exchange Offer has not been completed within 225 days following the
Closing Date or (iii) the Exchange Offer is not available to any
holder of the Securities and such holder notifies the Company in
writing prior to the 255 th day following the Closing Date that:
(A) it is prohibited by law or Commission policy from participating
in the Exchange Offer; or (B) that it may not resell the Exchange
Securities acquired by it in the Exchange Offer to the public
without delivering a prospectus and the prospectus contained in the
Exchange Registration Statement is not appropriate or available for
such resales; or (C) that it is a broker-dealer and owns
Registrable Securities acquired directly from the Company or an
affiliate of the Company (an “Electing Holder”), the
Company shall, in lieu of (or, in the case of clause (iii), in
addition to) conducting the Exchange Offer contemplated by Section
2(a), file under the Securities Act as soon as practicable, but no
later than the later of 60 days after the time such obligation to
file arises or such later date on which the Exchange Registration
Statement would have been required to be filed, a
“shelf” registration statement providing for the
registration of, and the sale on a continuous or delayed basis by
the holders of, all of the Registrable Securities, pursuant to Rule
415 or any similar rule that may be adopted by the Commission (such
filing, the “Shelf Registration” and such registration
statement, the “Shelf Registration Statement”). The
Company agrees to use its reasonable best efforts (x) to cause the
Shelf Registration Statement to become or be declared effective no
later than 120 days after such Shelf Registration Statement is
filed or such later date on which the Exchange Registration
Statement would have been required to be declared effective and to
keep such Shelf Registration Statement continuously effective for a
period ending on the earlier of the second anniversary of the
Effective Time or such time as there are no longer any Registrable
Securities outstanding, provided , however , that no
holder shall be entitled to be named as a selling securityholder in
the Shelf Registration Statement or to use the prospectus forming a
part thereof for resales of Registrable Securities unless such
holder is an Electing Holder who agrees to be bound by all of the
provisions of this Agreement applicable to such holder, and (y)
after the Effective Time of the Shelf Registration Statement,
promptly upon the request of any holder of Registrable Securities
that is not then an Electing Holder, to take any action reasonably
necessary to enable such holder to use the prospectus forming a
part thereof for resales of Registrable Securities, including,
without limitation, any action reasonably necessary to identify
such holder as a selling securityholder in the Shelf Registration
Statement, provided, however, that nothing in this Clause
(y) shall relieve any such holder of the obligation to return a
completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(d)(iii) hereof. The Company further
agrees to supplement or make amendments to the Shelf Registration
Statement, as and when required by the rules, regulations or
instructions applicable to the registration form used by the
Company for such Shelf Registration Statement or by the Securities
Act or rules and regulations thereunder for shelf registration, and
the Company agrees to furnish to each Electing Holder copies of any
such supplement or amendment prior to its being used or promptly
following its filing with the Commission.
(c) In the event that (i) the
Company has not filed the Exchange Registration Statement or Shelf
Registration Statement on or before the date on which such
registration statement is required to be filed pursuant to Section
2(a) or 2(b), respectively, or (ii) such Exchange Registration
Statement or Shelf Registration Statement has not become effective
or been declared effective by the Commission on or before the date
on which such registration statement is required to become or be
declared effective pursuant to Section 2(a) or 2(b), respectively,
or (iii) the Exchange Offer has not been completed within 30
business days after the initial effective date of the Exchange
Registration Statement relating to the Exchange Offer (if the
Exchange Offer is then required to be made) or (iv) any Exchange
Registration Statement or Shelf Registration Statement required by
Section 2(a) or 2(b) hereof is filed and declared effective but
shall thereafter, prior to the time such Exchange Registration
Statement or Shelf Registration Statement is no longer required to
be effective pursuant to Section 2(a) or 2(b), either be withdrawn
by the Company or shall become subject to an effective stop order
issued pursuant to Section 8(d) of the Securities Act suspending
the effectiveness of such registration statement (except as
specifically permitted herein) without being succeeded
immediately
5
by an additional registration
statement filed and declared effective (each such event referred to
in clauses (i) through (iv), a “Registration Default”
and each period during which a Registration Default has occurred
and is continuing, a “Registration Default Period”),
then, as liquidated damages for such Registration Default, subject
to the provisions of Section 9(b), liquidated damages
(“Liquidated Damages”), in addition to the Base
Interest, shall accrue at a per annum rate of 0.25% for the first
90 days of the Registration Default Period. The amount of
Liquidated Damages shall increase by an additional 0.25% per annum
of the principal amount of the Securities with respect to each
subsequent 90-day period until all Registration Defaults have been
cured, up to a maximum amount of 1.0% per annum of the principal
amount of the Securities.
(d) The Company shall take, and
shall cause the Guarantors to take, all actions reasonably
necessary or advisable to be taken by it to ensure that the
transactions contemplated herein are effected as so contemplated,
including all actions reasonably necessary or desirable to register
the Guarantees under the registration statement contemplated in
Section 2(a) or 2(b) hereof, as applicable.
(e) Any reference herein to a
registration statement as of any time shall be deemed to include
any document incorporated, or deemed to be incorporated, therein by
reference as of such time and any reference herein to any
post-effective amendment to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to
be incorporated, therein by reference as of such time.
3. Registration Procedures
.
If the Company files a registration
statement pursuant to Section 2(a) or Section 2(b), the following
provisions shall apply:
(a) At or before the Effective Time
of the Exchange Offer or the Shelf Registration, as the case may
be, the Company shall qualify the Indenture under the Trust
Indenture Act of 1939, as amended (the “Trust Indenture
Act”).
(b) In the event that such
qualification would require the appointment of a new trustee under
the Indenture, the Company shall appoint a new trustee thereunder
pursuant to the applicable provisions of the Indenture.
(c) In connection with the
Company’s obligations with respect to the registration of
Exchange Securities as contemplated by Section 2(a) (the
“Exchange Registration”), if applicable, the Company
shall, as soon as practicable (or as otherwise
specified):
(i) prepare and file with the
Commission, as soon as practicable but no later than 90 days after
the Closing Date, an Exchange Registration Statement on any form
which may be utilized by the Company and which shall permit the
Exchange Offer and resales of Exchange Securities by broker-dealers
during the Resale Period to be effected as contemplated by Section
2(a), and use its reasonable best efforts to cause such Exchange
Registration Statement to become effective as soon as practicable
thereafter, but no later than 180 days after the Closing
Date;
(ii) as soon as practicable prepare
and file with the Commission such amendments and supplements to
such Exchange Registration Statement and the prospectus included
therein as may be reasonably necessary to effect and maintain the
effectiveness of such Exchange Registration Statement for the
periods and purposes contemplated in Section 2(a) hereof and as may
be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such
Exchange Registration Statement, and promptly provide each
broker-dealer holding Exchange Securities with such reasonable
number of
6
copies of the prospectus included
therein (as then amended or supplemented), in conformity in all
material respects with the requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the
Commission thereunder, as such broker-dealer reasonably may
request, in a timely manner, prior to the expiration of the Resale
Period, for use in connection with resales of Exchange
Securities;
(iii) promptly notify each
broker-dealer that has requested or received copies of the
prospectus included in such registration statement, and confirm
such advice in writing, (A) when such Exchange Registration
Statement or the prospectus included therein or any prospectus
amendment or supplement or post-effective amendment has been filed
with the Commission, and, with respect to such Exchange
Registration Statement or any post-effective amendment, when the
same has become effective, (B) of any comments by the Commission
and by the Blue Sky or securities commissioner or regulator of any
state with respect thereto or any request by the Commission for
amendments or supplements to such Exchange Registration Statement
or prospectus or for additional information, (C) of the receipt by
the Company of any notification with respect to the suspension of
the qualification of the Exchange Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose, (D) if at any time the representations and warranties
of the Company contemplated by Section 5 cease to be true and
correct in all material respects, (E) of the receipt by the Company
of any notification with respect to the suspension of the
qualification of the Exchange Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose, or (F) at any time during the Resale Period when a
prospectus is required to be delivered under the Securities Act,
that such Exchange Registration Statement, prospectus, prospectus
amendment or supplement or post-effective amendment does not
conform in all material respects to the applicable requirements of
the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or contains an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then
existing;
(iv) in the event that the Company
would be required, pursuant to Section 3(c)(iii)(F) above, to
notify any broker-dealers holding Exchange Securities, without
delay prepare and furnish to each such holder a reasonable number
of copies of a prospectus supplemented or amended so that, as
thereafter delivered to purchasers of such Exchange Securities
during the Resale Period, such prospectus shall conform in all
material respects to the applicable requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder and shall not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(v) use its reasonable best efforts
to obtain the withdrawal of any order suspending the effectiveness
of such Exchange Registration Statement or any post-effective
amendment thereto at the earliest practicable date;
(vi) use its reasonable best efforts
to (A) register or qualify the Exchange Securities under the
securities laws or blue sky laws of such jurisdictions as are
contemplated by Section 2(a) no later than the commencement of the
Exchange Offer, (B) keep such registrations or qualifications in
effect and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions until the
expiration of the Resale Period and (C) take any and all other
actions as may be reasonably necessary or advisable to enable each
broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions; provided,
however, that the none of the Company or
7
the Guarantors shall be required for
any such purpose to (1) qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to qualify
but for the requirements of this Section 3(c)(vi), (2) be subject
to general service of process or to taxation in any such
jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders;
(vii) use its reasonable best
efforts to obtain the consent or approval of each governmental
agency or authority, whether federal, state or local, which may be
reasonably required to effect the Exchange Registration, the
Exchange Offer and the offering and sale of Exchange Securities by
broker-dealers during the Resale Period;
(viii) provide a CUSIP number for
all Exchange Securities, not later than the applicable Effective
Time;
(ix) comply with all applicable
rules and regulations of the Commission, and make generally
available to its securityholders as soon as practicable but no
later than eighteen months after the effective date of such
Exchange Registration Statement, an earnings statement of the
Company and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158
thereunder).
(d) In connection with the
Company’s obligations with respect to the Shelf Registration,
if applicable, the Company shall, as soon as practicable (or as
otherwise specified):
(i) prepare and file with the
Commission, as soon as practicable but in any case within the time
periods specified in Section 2(b), a Shelf Registration Statement
on any form which may be utilized by the Company and which shall
register all of the Registrable Securities for resale by the
holders thereof in accordance with such method or methods of
disposition as may be specified by such of the holders as, from
time to time, may be Electing Holders and use its reasonable best
efforts to cause such Shelf Registration Statement to become
effective as soon as practicable but in any case within the time
periods specified in Section 2(b);
(ii) not less than 30 calendar days
prior to the Effective Time of the Shelf Registration Statement,
mail the Notice and Questionnaire to the holders of Registrable
Securities; no holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement as of the
Effective Time, and no holder shall be entitled to use the
prospectus forming a part thereof for resales of Registrable
Securities at any time, unless such holder has returned a completed
and signed Notice and Questionnaire to the Company by the deadline
for response set forth therein; provided, however , holders
of Registrable Securities shall have at least 28 calendar days from
the date on which the Notice and Questionnaire is first mailed to
such holders to return a completed and signed Notice and
Questionnaire to the Company;
(iii) after the Effective Time of
the Shelf Registration Statement, upon the request of any holder of
Registrable Securities that is not then an Electing Holder,
promptly send a Notice and Questionnaire to such holder;
provided that the Company shall not be required to take any
action to name such holder as a selling securityholder in the Shelf
Registration Statement or to enable such holder to use the
prospectus forming a part thereof for resales of Registrable
Securities until such holder has returned a completed and signed
Notice and Questionnaire to the Company;
(iv) as soon as practicable prepare
and file with the Commission such amendments and supplements to
such Shelf Registration Statement and the prospectus included
therein as may be reasonably necessary to effect and maintain the
effectiveness of such Shelf Registration Statement for the period
specified in Section 2(b) hereof and as may be required by
the
8
applicable rules and regulations of
the Commission and the instructions applicable to the form of such
Shelf Registration Statement, and furnish to each of the Electing
Holders such copies as each Electing Holder may reasonably request
of any such supplement or amendment simultaneously with or prior to
its being used or filed with the Commission;
(v) comply with the provisions of
the Securities Act with respect to the disposition of all of the
Registrable Securities covered by such Shelf Registration Statement
in accordance with the intended methods of disposition by the
Electing Holders provided for in such Shelf Registration
Statement;
(vi) provide (A) the Electing
Holders, (B) the underwriters (which term, for purposes of this
Exchange and Registration Rights Agreement, shall include a person
deemed to be an underwriter within the meaning of Section 2(a)(11)
of the Securities Act), if any, thereof, (C) any sales or placement
agent therefor, (D) counsel for any such underwriter or agent and
(E) not more than one counsel for all the Electing Holders the
opportunity to participate in the preparation of such Shelf
Registration Statement, each prospectus included therein or filed
with the Commission and each amendment or supplement
thereto;
(vii) for a reasonable period prior
to the filing of such Shelf Registration Statement, and throughout
the period specified in Section 2(b), make available at reasonable
times at the Company’s principal place of business or such
other reasonable place for inspection by the persons referred to in
Section 3(d)(vi) who shall certify to the Company that they have a
current intention to sell the Registrable Securities pursuant to
the Shelf Registration such financial and other information and
books and records of the Company, and cause the officers,
employees, counsel and independent certified public accountants of
the Company to respond to such inquiries, as shall be reasonably
necessary, in the judgment of the respective counsel referred to in
such Section, to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act; provided,
however, that the foregoing inspection and information
gathering shall be coordinated on behalf of the Purchasers by you
and on behalf of the other parties, by one counsel designated by
and on behalf of such other parties as described in Section 4
hereof; provided, further, however, that each such party
shall be required to maintain in confidence and not to disclose to
any other person any information or records reasonably designated
by the Company as being confidential, until such time as (A) such
information becomes a matter of public record (whether by virtue of
its inclusion in such registration statement or otherwise), or (B)
such person shall be required so to disclose such information
pursuant to a subpoena or order of any court or other governmental
agency or body having jurisdiction over the matter (subject to the
requirements of such order, and only after such person shall have
given the Company prompt prior written notice of such requirement),
or (C) such information is required to be set forth in such Shelf
Registration Statement or the prospectus included therein or in an
amendment to such Shelf Registration Statement or an amendment or
supplement to such prospectus in order that such Shelf Registration
Statement, prospectus, amendment or supplement, as the case may be,
complies with applicable requirements of the federal securities
laws and the rules and regulations of the Commission and does not
contain an untrue statement of a material fact or omit to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the
circumstances then existing;
(viii) promptly notify each of the
Electing Holders, any sales or placement agent therefor and any
underwriter thereof (which notification may be made through any
managing underwriter that is a representative of such underwriter
for such purpose) and confirm such advice in writing, (A) when such
Shelf Registration Statement or the prospectus included therein or
any prospectus amendment or supplement or post-effective amendment
has been
9
filed with the Commission, and, with
respect to such Shelf Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any comments
by the Commission and by the Blue Sky or securities commissioner or
regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such Shelf Registration
Statement or prospectus or for additional information, (C) of the
issuance by the Commission of any stop order suspending the
effectiveness of such Shelf Registration Statement or the
initiation or threatening of any proceedings for that purpose, (D)
if at any time the representations and warranties of the Company
contemplated by Section 3(d)(xvii) or Section 5 cease to be true
and correct in all material respects, (E) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose, or (F) if at any time when a prospectus is required
to be delivered under the Securities Act, that such Shelf
Registration Statement, prospectus, prospectus amendment or
supplement or post-effective amendment does not conform in all
material respects to the applicable requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder or contains an untrue statement of a
material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(ix) use its reasonable best efforts
to obtain the withdrawal of any order suspending the effectiveness
of such registration statement Shelf Registration Statement or any
post-effective amendment thereto at the earliest practicable
date;
(x) if requested by any managing
underwriter or underwriters, any placement or sales agent or any
Electing Holder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by the
applicable rules and regulations of the Commission and as such
managing underwriter or underwriters, such agent or such Electing
Holder specifies should be included therein relating to the terms
of the sale of such Registrable Securities, including information
with respect to the principal amount of Registrable Securities
being sold by such Electing Holder or agent or to any underwriters,
the name and description of such Electing Holder, agent or
underwriter, the offering price of such Registrable Securities and
any discount, commission or other compensation payable in respect
thereof, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the offering of
the Registrable Securities to be sold by such Electing Holder or
agent or to such underwriters; and make all required filings of
such prospectus supplement or post-effective amendment promptly
after notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
(xi) furnish to each Electing
Holder, each placement or sales agent, if any, therefor, each
underwriter, if any, thereof and the respective counsel referred to
in Section 3(d)(vi) a copy of such Shelf Registration Statement,
each such amendment and supplement thereto (in each case including
all exhibits thereto (in the case of an Electing Holder of
Registrable Securities, upon written request) and documents
incorporated by reference therein) and such number of copies of
such Shelf Registration Statement (excluding exhibits thereto and
documents incorporated by reference therein unless specifically so
requested by such Electing Holder, agent or underwriter, as the
case may be) and of the prospectus included in such Shelf
Registration Statement (including each preliminary prospectus and
any summary prospectus), in conformity in all material respects
with the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder, and such other documents, as such Electing Holder,
agent, if any, and underwriter, if any, may reasonably request in
order to facilitate the offering and disposition of the
Registrable
10
Securities owned by such Electing
Holder, offered or sold by such agent or underwritten by such
underwriter and to permit such Electing Holder, agent and
underwriter to satisfy the prospectus delivery requirements of the
Securities Act; and the Company hereby consents to the use of such
prospectus (including such preliminary and summary prospectus) and
any amendment or supplement thereto by each such Electing Holder
and by any such agent and underwriter, in each case in the form
most recently provided to such person by the Company, in connection
with the offering and sale of the Registrable Securities covered by
the prospectus (including such preliminary and summary prospectus)
or any supplement or amendment thereto;
(xii) use its reasonable best
efforts to (A) register or qualify the Registrable Securities to be
included in such Shelf Registration Statement under such securities
laws or blue sky laws of such jurisdictions as any Electing Holder
and each placement or sales agent, if any, therefor and
underwriter,
