1
Exhibit 4.15
------------
BUILDING MATERIALS CORPORATION OF AMERICA
$35,000,000
10.50% Senior Notes Due 2002
REGISTRATION RIGHTS AGREEMENT
July 5, 2000
BNY Capital Markets, Inc.
One Wall Street
New York, New York 10286
Ladies and Gentlemen:
Building Materials Corporation of America, a Delaware
corporation (the "Company"), proposes to issue and sell to you (the "Initial
Purchaser"), upon the terms set forth in a purchase agreement dated June 28,
2000 (the "Purchase Agreement"), $35,000,000 aggregate principal amount of its
10.50% Senior Notes due 2002 (the "Notes"). The Subsidiaries of the Company
listed on the signature pages hereto (the "Guarantors", and, together with the
Company, the "Issuers") will jointly and severally guarantee the Notes (the
"Guarantees" and the Notes, as so guaranteed, the "Securities"). The Securities
will be issued pursuant to an indenture (the "Indenture") among the Company, the
Guarantors and The Bank of New York, as trustee (the "Trustee") dated July 5,
2000, substantially in the form previously furnished to the Initial Purchaser.
As an inducement to the Initial Purchaser, the Issuers agree with the Initial
Purchaser, for the benefit of the holders of the Securities (including, without
limitation, the Initial Purchaser, herein referred to as the "Holders"), as
follows:
1. Registered Exchange Offer. The Company shall prepare
and, by the earlier of 90 days after the date of original issuance of the
Securities (the "Issue Date") and the date of filing of a registration statement
in respect of an initial public offering of common stock of the Company (other
than a registration statement on Form S-8), file with the Securities and
Exchange Commission (the "Commission") a registration statement (the "Exchange
Offer Registration Statement") on an appropriate form under the Securities Act
of 1933, as amended (the "Securities Act"), with respect to a proposed offer
(the "Registered Exchange Offer") to the Holders of the Securities to issue and
deliver to such Holders, in exchange for the Securities, a like principal amount
of debt securities of the Company guaranteed by the Guarantors identical in all
material respects to the Securities (the "Exchange Notes"), except for the
transfer restrictions relating to the Securities. The Issuers shall use their
best efforts to cause such Exchange Offer Registration Statement to become
effective under the Securities Act within 180 days of the Issue Date. Following
the declaration of the effectiveness of the Exchange Offer Registration
Statement, the Issuers shall promptly commence the Registered Exchange Offer, it
being the objective of such Registered Exchange Offer to enable each Holder of
2
the Securities electing to exchange the Securities for Exchange Notes and
(assuming that such Holder is not an affiliate of the Company within the meaning
of the Securities Act, acquires the Exchange Notes in the ordinary course of
such Holder's business and has no arrangements with any person to participate in
the distribution of the Exchange Notes) to trade such Exchange Notes from and
after their receipt without any limitations or restrictions under the Securities
Act and the securities laws of the several states of the United States. In
connection with such Registered Exchange Offer, the Issuers shall take such
further action, including, without limitation, appropriate filings under state
securities laws, as may be necessary to realize the foregoing objective subject
to the proviso of Section 3(h).
The Issuers shall include within the prospectus contained
in the Exchange Offer 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 Commission with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of Exchange
Notes received by such broker-dealer in the Registered Exchange Offer (a
"Participating Broker-Dealer"), whether such positions or policies have been
publicly disseminated by the staff of the Commission or such positions or
policies, in the reasonable judgment of the Initial Purchaser, represent the
prevailing views of the staff of the Commission. Such "Plan of Distribution"
section shall also allow the use of the prospectus by all persons subject to the
prospectus delivery requirements of the Securities Act, including Participating
Broker-Dealers, and include a statement describing the means by which
Participating Broker-Dealers may resell the Exchange Notes.
The Issuers shall use their best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
prospectus contained therein, in order to permit such prospectus to be lawfully
delivered by all persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such persons must comply with such
requirements in order to resell the Exchange Notes; provided that such period
shall not exceed 180 days (or such longer period if extended pursuant to Section
3(j) below).
If, upon consummation of the Exchange Offer, the Initial
Purchaser holds Securities acquired by it as part of its initial distribution,
the Company upon the request of the Initial Purchaser shall simultaneously with
the delivery of the Exchange Notes pursuant to the Registered Exchange Offer
issue and deliver to the Initial Purchaser, in exchange (the "Private Exchange")
for the Securities held by the Initial Purchaser, a like principal amount of
debt securities of the Company guaranteed by the Guarantors identical in all
material respects to the Securities (the "Private Exchange Notes"). The Private
Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
In connection with the Registered Exchange Offer, the
Issuers shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
2
3
(b) keep the Registered 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);
(c) utilize the services of a depository for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New
York;
(d) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York time, on the last business day on
which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all applicable laws.
As soon as practicable after the close of the Registered
Exchange Offer or the Private Exchange, as the case may be, the Issuers shall:
(i) accept for exchange all the Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(ii) deliver to the Trustee for cancellation all the Securities so
accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each
Holder of the Securities, Exchange Notes or Private Exchange Notes,
as the case may be, equal in principal amount to the Securities of
such Holder so accepted for exchange.
The Exchange Notes and the Private Exchange Notes may be
issued under (i) the Indenture or (ii) an indenture substantially similar to the
Indenture, which in either event will provide that the Exchange Notes will not
be subject to the transfer restrictions set forth in the Indenture and that the
Exchange Notes, the Private Exchange Notes and the Securities will vote and
consent together on all matters as one class and that none of the Exchange
Notes, the Private Exchange Notes or the Securities will have the right to vote
or consent as a separate class on any matter.
2. Shelf Registration. If, (i) because of any change in law
or in currently prevailing interpretations of the staff of the Commission, the
Issuers are not permitted to effect a Registered Exchange Offer, as contemplated
by Section 1 hereof, (ii) for any reason the Registered Exchange Offer is not
completed within 210 days of the Issue Date (the "Initial Completion Deadline"),
which date shall be extended for an additional 30 days upon delivery prior to
the Initial Completion Deadline of a certificate of the Company to the effect
that the Registered Exchange Offer is scheduled to be completed within 30 days
of the Initial Completion Deadline (the "Extended Completion Deadline"), (iii)
the Initial Purchaser so requests with respect to the Securities or the Private
Exchange Notes held by it following consummation of the Registered Exchange
Offer or (iv) any Holder is not eligible to participate in the Registered
3
4
Exchange Offer or, in the case of any Holder that participates in the Registered
Exchange Offer or the Private Exchange, such Holder does not receive freely
tradable Exchange Notes on the date of the exchange, the Issuers shall, at their
cost, take the following actions:
(a) as promptly as reasonably practicable file with the Commission
and thereafter shall use their best efforts to cause to be declared
effective a registration statement (the "Shelf Registration
Statement" and, together with the Exchange Offer Registration
Statement, a "Registration Statement") on an appropriate form under
the Securities Act relating to the offer and sale of the Securities
or, if applicable, the Private Exchange Notes by the Holders thereof
from time to time in accordance with the methods of distribution set
forth in the Shelf Registration Statement and Rule 415 under the
Securities Act (hereafter, the "Shelf Registration").
(b) use their best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the prospectus included
therein to be lawfully delivered by the Holders of the Securities or,
if applicable, the Private Exchange Notes for a period of two years
(or for such longer period if extended pursuant to Section 3(j)
below) from the Issue Date or such shorter period that will terminate
when all the Securities or, if applicable, the Private Exchange Notes
covered by the Shelf Registration Statement have been sold pursuant
thereto; provided, that the Issuers shall be deemed not to have used
their best efforts to keep the Shelf Registration Statement effective
during the requisite period if it voluntarily takes any action that
would result in Holders of the Securities or, if applicable, the
Private Exchange Notes covered thereby not being able to offer and
sell the Securities or, if applicable, the Private Exchange Notes
during that period, unless such action is required by applicable law.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Issuers shall cause the Shelf Registration Statement
and the related prospectus and any amendment or supplement thereto,
as of the effective date of the Shelf Registration Statement,
amendment or supplement, (i) to comply in all material respects with
the applicable requirements of the Securities Act and the rules and
regulations of the Commission and (ii) not to contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
3. Registration Procedures. In connection with any Shelf
Registration contemplated by Section 2 hereof and, to the extent applicable, any
Registered Exchange Offer contemplated by Section 1 hereof, the following
provisions shall apply:
(a) The Company shall furnish to the Initial Purchaser, prior to the
filing thereof with the Commission, a copy of the Registration
Statement and each amendment thereof and each supplement, if any, to
the prospectus included therein and shall obtain the consent of the
Initial Purchaser to any such filing, which shall not be unreasonably
withheld.
(b) The Company shall give written notice to the Initial Purchaser,
the Holders of the Securities and any Participating Broker-Dealer
4
5
from whom the Company has received prior written notice that it will
be a Participating Broker-Dealer in the Registered Exchange Offer:
(i) when the Registration Statement or any amendment thereto has been
filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements
to the Registration Statement or the prospectus included therein or
for additional information, provided that the request and the
contents of the request need only be disclosed to the Initial
Purchaser and one counsel appointed by and on behalf of the Holders
of the Securities as described in Section 4;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose;
(iv) of the receipt by any Issuer or its legal counsel of any
notification with respect to the suspension of the qualification of
the Securities or, if applicable, the Private Exchange Notes for sale
in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the happening of any event that requires the Issuers to make
changes in the Registration Statement or the prospectus in order to
make the statements therein not misleading (which notice shall be
accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made).
(c) The Issuers shall use their best efforts to prevent the issuance
or obtain the withdrawal of any order suspending the effectiveness of
the Registration Statement at the earliest possible time.
(d) The Company shall furnish to each Holder of the Securities or, if
applicable, the Private Exchange Notes included within the coverage
of the Shelf Registration, without charge, at least one copy of the
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits (including those, if any,
incorporated by reference).
(e) The Company shall deliver to the Initial Purchaser and to any
other Holder who so requests, without charge, at least one copy of
the Exchange Offer Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and,
if the Initial Purchaser or any such Holder requests, all exhibits
(including those incorporated by reference).
(f) The Company shall deliver to each Holder of the Securities or, if
applicable, the Private Exchange Notes included within the coverage
of the Shelf Registration, without charge, as many copies of the
5
6
prospectus (including each preliminary prospectus) included in the
Shelf Registration Statement and any amendment or supplement thereto
as such person may reasonably request. The Issuers consent, subject
to the provisions of this Agreement, to the use of the prospectus or
any amendment or supplement thereto by each of the selling Holders of
the Securities or, if applicable, the Private Exchange Notes in
connection with the offering and sale of the Securities or, if
applicable, the Private Exchange Notes covered by the prospectus, or
any amendment or supplement thereto, included in the Shelf
Registration Statement.
(g) The Company shall deliver to the Initial Purchaser, any
Participating Broker-Dealer and such other persons required to
deliver a prospectus following the Registered Exchange Offer, without
charge, as many copies of the final prospectus included in the
Exchange Offer Registration Statement and any amendment or supplement
thereto as such persons may reasonably request. The Issuers consent,
subject to the provisions of this Agreement, to the use of the
prospectus or any amendment or supplement thereto by the Initial
Purchaser, if necessary, any Participating Broker-Dealer and such
other persons required to deliver a prospectus following the
Registered Exchange Offer in connection with the offering and sale of
the Exchange Notes covered by the prospectus, or any amendment or
supplement thereto, included in such Exchange Offer Registration
Statement.
(h) Prior to any public offering of the Securities or, if applicable,
the Private Exchange Notes, pursuant to the Shelf Registration, the
Company shall register or qualify or cooperate with the Holders of
the Securities or, if applicable, the Private Exchange Notes,
included therein and their respective counsel in connection with the
registration or qualification of the Securities or, if applicable,
the Private Exchange Notes, for offer and sale under the securities
or blue sky laws of such jurisdictions as any Holder of the
Securities or the Private Exchange Notes reasonably requests in
writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such jurisdictions of the
Securities covered by the Shelf Registration; provided that the
Issuers shall not be required to (i) qualify generally to do business
in any jurisdiction where it is not then so qualified or (ii) take
any action which would subject it to general service of process or to
taxation in any jurisdiction where it is not then so subject.
(i) The Issuers shall cooperate with the Holders of the Securities
or, if applicable, the Private Exchange Notes to facilitate the
timely preparation and delivery of certificates representing the
Securities or, if applicable, the Private Exchange Notes to be sold
in the Shelf Registration free of any restrictive legends and in such
denominations and registered in such names as the Holders may request
a reasonable period of time prior to sales of the Securities or, if
applicable, the Private Exchange Notes pursuant to the Shelf
Registration.
(j) Upon the occurrence of any event contemplated by Section 3(b)(v)
above, the Issuers shall promptly prepare a post-effective amendment
to the Registration Statement or a supplement to the related
prospectus or file any other required document so that, as thereafter
6
7
delivered to Holders of the Securities, the Exchange Notes or, if
applicable, the Private Exchange Notes, as the case may be, the
prospectus will not contain an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading. If the Company notifies the Initial Purchaser, the
Holders of the Securities and any known Participating Broker-Dealer
in accordance with Section 3(b)(v) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been
made, then the Initial Purchaser, the Holders of the Securities and
any such Participating Broker-Dealers shall suspend use of such
prospectus, and the period of effectiveness of the Shelf Registration
Statement provided for in Section 2(b) above and the Exchange Offer
Registration Statement provided for in Section 1 above shall each be
extended by the number of days from and including the date of the
giving of such notice to Holders of the Securities and any known
Participating Broker-Dealer shall have received such amended or
supplemented prospectus pursuant to this Section 3(j).
(k) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Securities
or Exchange Notes, as the case may be, and provide the applicable
trustee with certificates for the Securities or Exchange Notes, as
the case may be, in a form eligible for deposit with The Depository
Trust Company.
(l) The Issuers will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the
Registered Exchange Offer or the Shelf Registration and will make
generally available to its securities holders (or otherwise provide
in accordance with Section 11(a) of the Securities Act) an earnings
statement satisfying the provisions of Section 11(a) of the
Securities Act, no later than 45 days after the end of a 12-month
period (or 90 days, if such period is a fiscal year) beginning with
the first month of the Company's first fiscal quarter commencing
after the effective date of the Shelf Registration, which statement
shall cover such 12-month period.
(m) The Issuers shall cause the Indenture (or an indenture
substantially identical to the Indenture in the case of a Registered
Exchange Offer) to be qualified under the Trust Indenture Act of
1939, as amended.
(n) The Company may require each Holder of the Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the distribution of
the Securities as the Company may from time to time reasonably
require for inclusion in the Shelf Registration Statement.
(o) The Issuers shall enter into such customary agreements (including
if requested an underwriting agreement in customary form) and take
all such other action, if any, as any Holder of the Securities shall
reasonably request in order to facilitate the disposition of the
Securities pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, the Issuers shall (i) make
reasonably available for inspection by the Holders of the Securities,
any underwriter participating in any disposition pursuant to the
7
8
Shelf Registration Statement and any attorney, accountant or other
agent retained by the Holders of the Securities or any such
underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Issuers and (ii) cause the
Issuers' officers, directors and employees to supply all relevant
information reasonably requested by the Holders of the Securities or
any such underwriter, attorney, accountant or agent in connection
with the Shelf Registration Statement; provided that -------- the
foregoing inspection and information gathering shall be coordinated
on behalf of the Initial Purchaser by the Initial Purchaser and on
behalf of the other parties, by one counsel designated by and on
behalf of such other parties as described in Section 4.
(q) In the case of the Registered Exchange Offer, the Issuers shall
(i) make reasonably available for inspection by the Initial
Purchaser, any known Participating Broker-Dealer and any attorney,
accountant or other agent retained by the Initial Purchaser or such
Participating Broker-Dealer all relevant financial and other records,
pertinent corporate documents and properties of the Issuers and (ii)
cause the Issuers' officers, directors and employees to supply all
relevant information reasonably requested by the Initial Purchaser,
such Participating Broker-Dealer or any such attorney, accountant or
agent in connection with the Exchange Offer Registration Statement;
provided that the foregoing inspection and information
gathering shall be coordinated on behalf of the Initial Purchaser by
the Initial Purchaser and on behalf of the other parties, by one
counsel designated by and on behalf of such other parties as
described in Section 4.
(r) In the case of any Shelf Registration, the Issuers, if requested
by any Holder of the Securities or, if applicable, the Private
Exchange Notes, shall cause their counsel to deliver an opinion
relating to the Securities or, if applicable, the Private Exchange
Notes in customary form, cause its officers to execute and deliver
all customary documents and certificates requested by any
underwriters of the Securities or, if applicable, the Private
Exchange Notes and cause its independent public accountants to
provide to the selling Holders of the Securities or, if applicable,
the Private Exchange Notes and any underwriter therefor a comfort
letter in customary form.
(s) In the case of the Registered Exchange Offer, if requested by the
Initial Purchaser or any known Participating Broker-Dealer, the
Issuers shall cause their outside counsel to deliver to the Initial
Purchaser or such Participating Broker-Dealer a signed opinion in the
form set forth in Section 5(c)(A) of the Purchase Agreement with such
changes as are customary in connection with the preparation of a
Registration Statement and shall cause its independent public
accountants to deliver to the Initial Purchaser or such Participating
Broker-Dealer a comfort letter, in customary form, meeting the
requirements as to the substance thereof as set forth in Section 5(f)
of the Purchase Agreement, with appropriate date changes.
4. Registration Expenses. The Issuers shall bear all
expenses incurred in connection with the performance of their obligations under
Sections 1 through 3 hereof (including the reasonable fees and expenses of Bryan
8
9
Cave LLP, counsel to the Initial Purchaser, incurred in connection with the
Registered Exchange Offer) and, in the event of a Shelf Registration, shall bear
or reimburse the Holders of the Securities or, if applicable, the Private
Exchange Notes for the reasonable fees and disbursements of one firm of counsel
designated by the Holders of a majority in principal amount of the Securities
and, if applicable, the Private Exchange Notes to act as counsel for the Holders
of the Securities, and, if applicable, the Private Exchange Notes in connection
therewith, which counsel shall be reasonably satisfactory to the Company.
5. Indemnification. (a) The Issuers agree to indemnify and
hold harmless each Holder of the Securities or, if applicable, the Private
Exchange Notes and each person, if any, who controls such Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
and each director, officer, employee or agent of such Holder and each director,
officer, employee or agent of each such controlling person (each Holder, such
controlling persons and each such director, officer, employee and agent are
referred to collectively as the "Indemnified Parties") from and against any
losses, claims, damages or liabilities, joint or several, or any actions in
respect thereof (including, but not limited to, any losses, claims, damages,
liabilities or actions relating to purchases and sales of the Securities or, if
applicable, the Private Exchange Notes), to which each Indemnified Party may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement or prospectus or in any amendment or
supplement thereto, or arise out of, or are based upon, the 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, and shall reimburse, as incurred, the
Indemnified Parties for any legal or other expenses reasonably incurred by them
in connection with investigating or defending or preparing to defend against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action in respect thereof; provided, however, that the
Issuers shall not be liable in any such case to the extent that such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration in reliance
upon and in conformity with written information furnished to any Issuer by or on
behalf of such Holder specifically for inclusion therein; provided, further ,
that (A) the Issuers shall not be obligated to indemnify or hold harmless any
Indemnified Party in respect of any loss, claim, damage, liability or action to
the extent that any such loss, claim, damage, liability or action arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in a preliminary Registration Statement or preliminary
prospectus if the applicable Holder or Initial Purchaser failed to deliver a
copy of a final prospectus or an amended or supplemented Registration Statement
or prospectus that was made available by the Issuers to such Indemnified Party
prior to the applicable sale to the person or persons asserting the claim which
is the basis of indemnification and such final prospectus or amended or
supplemented Registration Statement or prospectus cured such defect and (B) this
indemnity agreement will be in addition to any liability which the Company may
otherwise have to such Indemnified Party. The Issuers will not settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action, suit or proceeding in respect of which indemnification may be
sought hereunder (whether or not such Indemnified Party or any person who
controls such Indemnified Party within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act is a party to such claim,
action, suit or proceeding) without the prior written consent of such
Indemnified Party, which consent shall not be unreasonably withheld, unless such
settlement, compromise or consent includes an unconditional release of such
9
10
Indemnified Party and each such controlling person from all liability arising
out of such claim, action, suit or proceeding. No Indemnified Party will settle
or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
may be sought without the prior written consent of the Issuers (which consent
will not be unreasonably withheld). The Issuers shall also indemnify
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution (as described in such
Registration Statement), their officers and directors and each person who
controls such persons (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) to the same extent as provided above with
respect to the indemnification of the Holders of the Securities if requested by
such Holders.
(b) The Issuers agrees to indemnify and hold harmless the
Initial Purchaser, any Participating Broker-Dealer and each person, if any, who
controls the Initial Purchaser or a Participating Broker-Dealer within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
and each director, officer, employee or agent of the Initial Purchaser or a
Participating Broker-Dealer and each director, officer, employee or agent of
each such controlling person (the Initial Purchaser, any Participating
Broker-Dealer, such controlling persons and each such director, officer,
employee and agent of the Initial Purchaser, such Participating Broker-Dealer or
such controlling person are referred to collectively as the "Exchange Offer
Indemnified Parties") from and against any losses, claims, damages or
liabilities, joint or several, or any actions in respect thereof (including, but
not limited to, any losses, claims, damages, liabilities or actions relating to
purchases and sales of Exchange Notes), to which each Exchange Offer Indemnified
Party may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Exchange Offer Registration Statement or
prospectus contained therein or in any amendment or supplement thereto, or arise
out of or are based upon the 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, and shall reimburse, as incurred, the Exchange Offer Indemnified
Parties for any legal or other expenses reasonably incurred by them in
connection with investigating or defending or preparing to defend against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action in respect thereof; provided, however, that the
Issuers shall not be liable in any such case to the extent that such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in any Exchange
Offer Registration Statement or prospectus contained therein or in any amendment
or supplement thereto in reliance upon and in conformity with written
information furnished to any Issuer by or on behalf of the Initial Purchaser or
10
11
Participating Broker-Dealer specifically for inclusion therein; provided,
further, that (A) the Issuers shall not be obligated to indemnify or hold
harmless any Exchange Offer Indemnified Party in respect of any loss, claim,
damage, liability or action to the extent that any such loss, claim, damages,
liability or action arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in a preliminary
Registration Statement or preliminary prospectus if the applicable Initial
Purchaser or Participating Broker-Dealer failed to deliver a copy of a final
prospectus or an amended or supplemented Registration Statement or prospectus
that was made available by the Issuers to such Exchange Offer Indemnified Party
prior to the applicable sale to the person or persons asserting the claim which
is the basis of indemnification and such final prospectus or amended or
supplemented Registration Statement or prospectus cured such defect and (B) this
indemnity agreement will be in addition to any liability which the Issuers may
otherwise have to such Exchange Offer Indemnified Party. The Issuers will not
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
may be sought hereunder (whether or not such Exchange Offer Indemnified Party or
any person who controls such Exchange Offer Indemnified Party within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act is a party
to such claim, action, suit or proceeding) without the prior written consent of
such Exchange Offer Indemnified Party, which consent shall not be unreasonably
withheld, unless such settlement, compromise or consent includes an
unconditional release of such Exchange Offer Indemnified Party and each such
controlling person from all liability arising out of such claim, action, suit or
proceeding. No Exchange Offer Indemnified Party will settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action,
suit or proceeding in respect of which indemnification may be sought without the
prior written consent of the Issuers (which consent will not be unreasonably
withheld).
(c) Each Holder of the Securities or, if applicable, the
Private Exchange Notes, severally and not jointly, will indemnify and hold
harmless the Issuers, each director, officer, employee or agent of the Issuers
and each person, if any, who controls any Issuer within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act and each director,
officer, employee or agent of such controlling person from and against any
losses, claims, damages or liabilities or any actions in respect thereof, to
which any Issuer or any such director, officer, employee, agent or controlling
person may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in a Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus relating to a
Shelf Registration, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to any
Issuer by or on behalf of such Holder specifically for inclusion therein; and,
subject to the limitation set forth immediately preceding this clause, shall
reimburse, as incurred, such indemnified persons for any legal or other expenses
reasonably incurred by any Issuer or any such director, officer, employee, agent
or controlling person in connection with the investigating or defending or
preparing to defend against or appearing as a third-party witness in connection
11
12
with any loss, claim, damage, liability or action in respect thereof. This
indemnity agreement will be in addition to any liability which such Holder may
otherwise have to any Issuer or any such directors, officers, employees, agents
or controlling persons.
(d) Promptly after receipt by an indemnified party under
this Section 5 of notice of the commencement of any action or proceeding
(including a governmental investigation), such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 5, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party (i) will not relieve it from any
liability under paragraph (a), (b) or (c) above unless and to the extent it did
not otherwise learn of such action and such failure results in the forfeiture by
the indemnifying party of substantial rights or defenses and (ii) will not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a), (b) or (c) above. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be one or more
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnifying party shall not have the right to direct the defense of such action
on behalf of such indemnified party or parties and such indemnified party or
parties shall have the right to select separate counsel to defend such action on
behalf of such indemnified party or parties. After notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof
and approval by such indemnified party of counsel appointed to defend such
action, which approval shall not be unreasonably withheld, the indemnifying
party will not be liable to such indemnified party under this Section 5 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances) or (ii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party.
(e) In circumstances in which the indemnity agreement
provided for in the preceding paragraphs of this Section 5 is unavailable or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) (other than by
reason of exceptions provided in such Section 5), each indemnifying party, in
order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof), in such
proportion as is appropriate to reflect (i) the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party on
12
13
the other from the offering of the Securities or (ii) if the allocation provided
by the foregoing clause (i) is not permitted by applicable law, not only such
relative benefits but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof). The relative fault of the parties shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Issuers on the one hand or such Holder or such other
indemnified person, as the case may be, on the other, the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission, and any other equitable considerations appropriate
in the circumstances. The Issuers and each indemnified party agree that it would
not be equitable if the amount of such contribution were determined by pro rata
or per capita allocation or by any other method of allocation that does not take
into account the equitable considerations referred to in the first sentence of
this paragraph (e). Notwithstanding any other provision of this Section 5(e),
the Holders of the Securities or, if applicable, the Private Exchange Notes
shall not be required to contribute any amount in excess of the amount by which
the net proceeds received by such Holders from the sale of the Securities or, if
applicable, the Private Exchange Notes pursuant to a Registration Statement
exceeds the amount of damages which such Holders have otherwise been required to
pay in respect of the same or a similar claim, and 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. For purposes of this paragraph (e),
each director, officer, employee and agent of any indemnified party and each
person, if any, who controls such indemnified party within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such indemnified party and each director and
officer of any Issuer, and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act shall have the same rights to contribution as such Issuer.
(f) The agreements contained in this Section 5 shall
survive the sale of the Securities, the Exchange Notes or, if applicable, the
Private Exchange Notes pursuant to a Registration Statement and shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
6. Additional Interest Under Certain Circumstances.
(a) Additional interest at a rate of 0.5% per annum of the
principal amount of the Notes (the "Additional Interest") shall be assessed as
follows:
(i) if the Exchange Offer Registration Statement is not filed with
the Commission by the earlier of (x) 90 days after the Issue Date and
(y) the date of filing of a registration statement in respect of an
initial public offering of common stock of the Company (other than a
registration statement on Form S-8), then, commencing from and
including the earlier of such dates, Additional Interest shall be
assessed on the Notes;
13
14
(ii) if the Registered Exchange Offer is not completed and a Shelf
Registration is not declared effective by the Commission by the
Initial Completion Deadline, then, commencing on the Initial
Completion Deadline, Additional Interest shall be assessed on the
Notes; and
(iii) if (A) the Issuers have not exchanged Exchange Notes for all
the Securities validly tendered in accordance with the terms of the
Registered Exchange Offer on or prior to 30 business days after the
date on which the Exchange Offer Registration Statement was declared
effective, or (B) if applicable, the Shelf Registration Statement has
been declared effective and it ceases to be effective prior to two
years (or such later date if such two-year period is extended
pursuant to Section 3(j) above or such shorter period as is provided
in Section 2(b)) from the Issue Date, then, Additional Interest shall
be assessed on the Notes, commencing on (x) the 31st business day
after such effective date in the case of (A) above, or (y) the day
such Shelf Registration Statement ceases to be effective in the case
of (B) above;
provided, however, that (l) upon the filing of the Exchange Offer Registration
Statement or the Initial Completion Deadline in the case of (i) above, (2) upon
completion of the Registered Exchange Offer or the effectiveness of the Shelf
Registration Statement in the case of (ii) above, or (3) upon the exchange of
Exchange Notes for all the Securities validly tendered in accordance with the
terms of the Registered Exchange Offer, or upon the effectiveness of the Shelf
Registration Statement which has ceased to remain effective prior to two years
(or such later date if extended pursuant to Section 3(j) above or such shorter
period as is provided in Section 2(b)) from the date of original issuance of the
Securities in the case of (iii) above, Additional Interest on the Notes as a
result of such clause (i), (ii) or (iii) shall immediately cease to accrue.
(b) Any amount of Additional Interest due pursuant to
clauses (i), (ii) or (iii) of Section 6(a) above will be payable in cash
semiannually in arrears on each Interest Payment Date (as defined in the Notes),
commencing with the first such Interest Payment Date occurring after any such
Additional Interest commences to accrue. The amount of Additional Interest will
be determined by multiplying the Additional Interest by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period, determined on the basis of a 360-day year
comprised of twelve 30-day months, and the denominator of which is 360.
(c) If the Issuers effect the Registered Exchange Offer,
the Issuers will be entitled to close the Registered Exchange Offer provided
that the Issuers have accepted all the Securities theretofore validly tendered
in accordance with the terms of the Registered Exchange Offer.
7. Miscellaneous.
(a) 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, except by the Issuers
14
15
and the written consent of Holders of a majority in aggregate principal amount
of the Securities, determined in accordance with the terms of the Indenture.
(b) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand delivery,
first-class mail, telex, telecopy, or air courier which guarantees overnight
delivery:
(1) if to a Holder of the Securities, in accordance with
Section 10.02 of the Indenture, with a copy to the Initial Purchaser
as follows:
c/o BNY Capital Markets, Inc.
One Wall Street
New York, New York 10286
Attention: John M. Roy
with a copy to:
Bryan Cave LLP
245 Park Avenue
New York, New York 10167
Attention: J. Christopher Eagan, Esq.
(2) if to the Initial Purchaser, at the addresses
specified in Section 7(b)(1);
(3) if to any Issuer, at its address as follows:
Building Materials Corporation of America
1361 Alps Road
Wayne, New Jersey 07470
Attention: General Counsel
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged by recipient's
telecopy operator, if telecopied; and on the day delivered, if sent by overnight
air courier guaranteeing next day delivery. All such notices and communications
to the Holders shall be deemed to have been duly given if given as provided in
Section 10.02 of the Indenture.
(c) Successors and Assigns. This Agreement shall be binding
upon the Issuers and their successors and assigns.
(d) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
15
16
(e) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any provisions relating to conflicts of laws.
(g) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
16
17
REGISTRATION RIGHTS AGREEMENT
If the foregoing is in accordance with your understanding
of our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Initial Purchaser and the Issuers in accordance with its
terms.
Very truly yours,
BUILDING MATERIALS CORPORATION OF AMERICA
By: /s/ Susan B. Yoss
------------------------------------------
Name: Susan B. Yoss
Title: Senior Vice President and Treasurer
BUILDING MATERIALS MANUFACTURING CORPORATION
By: /s/ Susan B. Yoss
------------------------------------------
Name: Susan B. Yoss
Title: Senior Vice President and Treasurer
BUILDING MATERIALS INVESTMENT CORPORATION
By: /s/ Susan B. Yoss
------------------------------------------
Name: Susan B. Yoss
Title: Senior Vice President and Treasurer
Confirmed and accepted as of
the date first above written:
BNY CAPITAL MARKETS, INC.
By: /s/ Bennett Leichman
----------------------------------
Name: Bennett Leichman
Title: Vice President
17