EXHIBIT 4.4
EXECUTION COPY
U.S.$210,000,000
BURNS PHILP CAPITAL PTY LIMITED
(ACN 100 768 803)
BURNS PHILP CAPITAL (U.S.) INC.
10 3/4% SENIOR SUBORDINATED NOTES DUE 2011
REGISTRATION RIGHTS AGREEMENT
February 20, 2003
Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, New York 10010-3629
Dear Sirs:
Burns Philp Capital Pty Limited (ACN 100 768 803), an Australian
corporation (the "AUSTRALIAN ISSUER"), and Burns Philp Capital (U.S.) Inc., a
Delaware corporation (the "U.S. ISSUER" and, collectively with the Australian
Issuer, the "ISSUERS"), propose to issue and sell to Credit Suisse First Boston
LLC (the "INITIAL PURCHASER"), upon the terms set forth in a purchase agreement
(the "PURCHASE AGREEMENT") dated as of February 12, 2003, U.S.$210,000,000
aggregate principal amount of their 10 3/4% Senior Subordinated Notes due 2011
(the "INITIAL SECURITIES") to be guaranteed (the "GUARANTIES") by Burns, Philp &
Company Limited (ACN 000 000 359) (the "PARENT") and the subsidiary guarantors
named in Schedule A herein (the "SUBSIDIARY GUARANTORS", together with the
Parent, the "GUARANTORS" and, collectively with the Issuers, the "COMPANY"). The
Initial Securities will be issued pursuant to an indenture (the "INDENTURE"),
dated as of February 20, 2003, among the Issuers, the Guarantors named therein
and Wells Fargo Bank, National Association, as trustee (the "TRUSTEE"). As an
inducement to the Initial Purchaser to enter into the Purchase Agreement, the
Company agrees with the Initial Purchaser, for the benefit of the Initial
Purchaser and the holders of the Securities (as defined below) (collectively the
"HOLDERS"), as follows:
1. Registered Exchange Offer. Unless not permitted by applicable law
(after the Company has complied with the ultimate paragraph of this Section 1),
the Company shall prepare and, not later than 120 days (such 120th day being the
"EXCHANGE OFFER FILING DEADLINE") after the date on which the Initial Purchaser
purchases the Initial Securities pursuant to the Purchase Agreement (the
"CLOSING DATE"), 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 (the
"SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE
OFFER") to the Holders of Transfer Restricted Securities (as defined in Section
6 hereof), who are not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer, to offer to such Holders, in
exchange for surrender of the
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Initial Securities, a like aggregate principal amount of debt securities of the
Company issued under the Indenture, identical in all material respects to the
Initial Securities and registered under the Securities Act (the "EXCHANGE
SECURITIES"). The Company shall use its reasonable best efforts to (i) cause
such Exchange Offer Registration Statement to become effective under the
Securities Act within 210 days after the Closing Date (such 210th day being the
"EXCHANGE OFFER EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer
Registration Statement effective for not less than 30 days (or longer, if
required by applicable law) after the date notice of the Registered Exchange
Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER
REGISTRATION PERIOD").
If the Company commences the Registered Exchange Offer, the Company (i)
shall be entitled to consummate the Registered Exchange Offer 30 days after such
commencement (provided that the Company has accepted all the Initial Securities
theretofore validly tendered in accordance with the terms of the Registered
Exchange Offer) and (ii) shall be required to consummate the Registered Exchange
Offer no later than 40 days after the date on which the Exchange Offer
Registration Statement is declared effective (such 40th day being the
"CONSUMMATION DEADLINE").
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company shall as soon as practicable commence the
Registered Exchange Offer, it being the objective of such Registered Exchange
Offer to enable each Holder of Transfer Restricted Securities electing to
exchange the Initial Securities for Exchange Securities (assuming that such
Holder is not an affiliate of the Company within the meaning of the Securities
Act, acquires the Exchange Securities in the ordinary course of such Holder's
business and has no arrangements with any person to participate in the
distribution of the Exchange Securities and is not prohibited by any law or
policy of the Commission from participating in the Registered Exchange Offer) to
trade such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of the several states of the United
States.
The Company acknowledges that, pursuant to current interpretations by
the Commission's staff of Section 5 of the Securities Act, in the absence of an
applicable exemption therefrom, (i) each Holder which is a broker-dealer
electing to exchange Initial Securities, acquired for its own account as a
result of market making activities or other trading activities, for Exchange
Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus
containing the information set forth in (a) Annex A hereto on the cover, (b)
Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of
the Exchange Offer" section, and (c) Annex C hereto in the "Plan of
Distribution" section of such prospectus in connection with a sale of any such
Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell
Securities (as defined below) acquired in exchange for Initial Securities
constituting any portion of an unsold allotment, is required to deliver a
prospectus containing the information required by Items 507 or 508 of Regulation
S-K under the Securities Act, as applicable, in connection with such sale.
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The Company shall use its reasonable 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 Securities; provided, however, that
(i) in the case where such prospectus and any amendment or supplement thereto
must be delivered by an Exchanging Dealer or the Initial Purchaser, such period
shall be the lesser of 180 days and the date on which all Exchanging Dealers and
the Initial Purchaser have sold all Exchange Securities held by them (unless
such period is extended pursuant to Section 3(j) below) and (ii) the Company
shall make such prospectus and any amendment or supplement thereto available to
any broker-dealer for use in connection with any resale of any Exchange
Securities for a period of not less than 180 days after the consummation of the
Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer, the Initial
Purchaser holds Initial Securities acquired by it as part of its initial
distribution, the Company, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver to
the Initial Purchaser upon the written request of the Initial Purchaser, in
exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by the Initial
Purchaser, a like principal amount of debt securities of the Company issued
under the Indenture and identical in all material respects to the Initial
Securities (including the existence of restrictions on transfer under the
Securities Act and under the laws of other jurisdictions, but excluding
provisions relating to matters described in Section 6 hereof) (the "PRIVATE
EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the
Private Exchange Securities are herein collectively called the "SECURITIES".
In connection with the Registered Exchange Offer, the Company 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;
(b) keep the Registered Exchange Offer open for not less than
30 days (or longer, if required by applicable law) after the date
notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of
New York, which may be the Trustee or an affiliate of the Trustee;
(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 with all applicable laws.
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As soon as practicable after the close of the Registered Exchange Offer
or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered
and not withdrawn pursuant to the Registered Exchange Offer or the
Private Exchange;
(y) deliver to the Trustee for cancelation all the Initial
Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to
each Holder of the Initial Securities, Exchange Securities or Private
Exchange Securities, as the case may be, equal in principal amount to
the Initial Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not be
subject to the United States transfer restrictions set forth in the Indenture
and that all the Securities will vote and consent together on all matters as one
class and that none of the Securities will have the right to vote or consent as
a class separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security issued
pursuant to the Registered Exchange Offer and in the Private Exchange will
accrue from the last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no interest has been
paid on the Initial Securities, from the date of original issue of the Initial
Securities.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Securities received by such Holder
will be acquired in the ordinary course of business, (ii) such Holder will have
no arrangements or understanding with any person to participate in the
distribution of the Securities or the Exchange Securities within the meaning of
the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule
405 of the Securities Act, of the Company or if it is an affiliate, such Holder
will comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable, (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 Exchange Securities, (v) if such Holder is a broker-dealer,
that it will receive Exchange Securities for its own account in exchange for
Initial Securities that were acquired as a result of market-making activities or
other trading activities and that it will be required to acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange
Securities, and (vi) such Holder will comply with all transfer restrictions that
continue to apply to such Exchange Securities following the Exchange Offer.
Notwithstanding any other provisions hereof, the Company will ensure
that (i) any Exchange Offer Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations
thereunder, (ii) any
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Exchange Offer Registration Statement and any amendment thereto does not, when
it becomes effective, 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 and (iii) any prospectus forming part of any
Exchange Offer Registration Statement, and any supplement to such prospectus,
does not include an 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 the light of the circumstances under which they were
made, not misleading.
If following the date hereof there has been announced a change in
Commission policy with respect to exchange offers that in the reasonable opinion
of counsel to the Company raises a substantial question as to whether the
Registered Exchange Offer is permitted by applicable federal law, the Company
will seek a no-action letter or other favorable decision from the Commission
allowing the Company to consummate the Registered Exchange Offer. The Company
will pursue the issuance of such a decision to the Commission staff level. In
connection with the foregoing, the Company will take all such other actions as
may be requested by the Commission or otherwise required in connection with the
issuance of such decision, including without limitation (i) participating in
telephonic conferences with the Commission, (ii) delivering to the Commission
staff an analysis prepared by counsel to the Company setting forth the legal
bases, if any, upon which such counsel has concluded that the Registered
Exchange Offer should be permitted and (iii) diligently pursuing a resolution
(which need not be favorable) by the Commission staff.
2. Shelf Registration. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Company
is not permitted to effect a Registered Exchange Offer, as contemplated by
Section 1 hereof, (ii) the Registered Exchange Offer is not consummated by the
250th day after the Closing Date, (iii) the Initial Purchaser so requests with
respect to the Initial Securities (or the Private Exchange Securities) not
eligible to be exchanged for Exchange Securities in the Registered Exchange
Offer and held by it following consummation of the Registered Exchange Offer or
(iv) any Holder (other than an Exchanging Dealer) is not eligible to participate
in the Registered Exchange Offer or, in the case of any Holder (other than an
Exchanging Dealer) that participates in the Registered Exchange Offer, such
Holder does not receive Exchange Securities freely tradeable under the
Securities Act on the date of the exchange and any such Holder so requests, the
Company shall take the following actions (the date on which any of the
conditions described in the foregoing clauses (i) through (iv) occur, including
in the case of clauses (iii) or (iv) the receipt of the required notice, being a
"TRIGGER DATE"):
(a) The Company shall promptly (but in no event more than 30
days after the Trigger Date (such 30th day being the "SHELF FILING
DEADLINE" and, together with the Exchange Offer Filing Deadline, the
"FILING DEADLINE")) file with the Commission and (i) in the case of
clause (i) above, thereafter use its reasonable best efforts to cause
to be declared effective no later than the Exchange Offer Effectiveness
Deadline and (ii) in the case of clauses (ii) through (iv) above,
thereafter use its reasonable best efforts to cause to be declared
effective no later
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than the 90th day after the Shelf Filing Deadline (such 90th day being
the "SHELF REGISTRATION STATEMENT EFFECTIVENESS DEADLINE" and, together
with the Exchange Offer Effectiveness Deadline, an "EFFECTIVENESS
DEADLINE"), a registration statement, including any amendment (pre or
post-effective) or supplement thereto (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 Transfer
Restricted Securities 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
(hereinafter, the "SHELF REGISTRATION"); provided, however, that no
Holder (other than an Initial Purchaser) shall be entitled to have the
Securities held by it covered by such Shelf Registration Statement
unless such Holder agrees in writing to be bound by all the provisions
of this Agreement applicable to such Holder.
(b) Not less than 30 days prior to the Effective Time, mail
the Notice and Questionnaire to the holders of Transfer Restricted
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 Transfer Restricted 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 Transfer Restricted Securities
shall have at least 28 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.
(c) After the Effective Time, upon the request of any Holder
of Transfer Restricted 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 Transfer Restricted Securities until such Holder has
returned a completed and signed Notice and Questionnaire to the
Company.
(d) 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 benefit of all Electing Holders for the
period specified in Section 2(e) hereof and as may be required by the
applicable rules and regulations of the Commission and the instructions
to the form of such Shelf Registration Statement, and, if required,
cause any such amendments to be declared effective by the Commission,
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.
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(e) The Company shall use its reasonable 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 relevant Securities, for a period of two years (or for
such longer period if extended pursuant to Section 3(j) below) from the
date of its effectiveness or such shorter period that will terminate
when all the Securities covered by the Shelf Registration Statement (i)
have been sold pursuant thereto or (ii) are no longer restricted
securities (as defined in Rule 144 under the Securities Act, or any
successor rule thereof); provided, however that the Company may delay
filing and distributing any such supplement or amendment (and continue
the suspension of the use of the prospectus) if the Company determines
in good faith that such supplement or amendment would, in the
reasonable judgment of the Company, (i) interfere with or affect the
negotiation or completion of a transaction that is being contemplated
by the Company, or (ii) involve initial or continuing disclosure
obligations that are not in the best interests of the Company's
stockholders at such time; provided, further, that neither such delay
nor such suspension shall extend for a period of more than 45
consecutive days or an aggregate of 90 days in any twelve-month period.
The Company shall be deemed not to have used its reasonable 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 Securities covered thereby not being able to offer and
sell such Securities during that period, unless such action is
permitted pursuant to the preceding sentence or required by applicable
law.
(f) Notwithstanding any other provisions of this Agreement to
the contrary, the Company shall cause the Shelf Registration Statement
and the related prospectus and any amendment or supplement thereto, as
of each 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.
(g) For purposes of this Agreement, the following terms shall
have following respective meanings:
"EFFECTIVE TIME" with respect to a Shelf Registration
Statement 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 become effective.
"ELECTING HOLDER" shall mean any Holder of Transfer Restricted
Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section 2(b) hereof.
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"NOTICE AND QUESTIONNAIRE" means a Selling Securityholder
Notice and Questionnaire substantially in the form of Exhibit A
attached hereto.
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 (i) 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, in the event that the
Initial Purchaser (with respect to any portion of an unsold allotment
from the original offering) is participating in the Registered Exchange
Offer or the Shelf Registration Statement, the Company shall use its
reasonable best efforts to reflect in each such document, when so filed
with the Commission, such comments as the Initial Purchaser reasonably
may propose; (ii) include the information set forth in Annex A hereto
on the cover, in Annex B hereto in the "Exchange Offer Procedures"
section and the "Purpose of the Exchange Offer" section and in Annex C
hereto in the "Plan of Distribution" section of the prospectus forming
a part of the Exchange Offer Registration Statement and include the
information set forth in Annex D hereto in the Letter of Transmittal
delivered pursuant to the Registered Exchange Offer; (iii) if requested
by the Initial Purchaser, include the information required by Items 507
or 508 of Regulation S-K under the Securities Act, as applicable, in
the prospectus forming a part of the Exchange Offer Registration
Statement; (iv) 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 Securities 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 based upon advice of
counsel (which may be in-house counsel), represent the prevailing views
of the staff of the Commission; (v) in the case of a Shelf Registration
Statement, include the names of the Electing Holders who propose to
sell Securities pursuant to the Shelf Registration Statement as selling
securityholders; and (vi) in the event the Company receives a Notice
and Questionnaire from an Electing Holder after the Effective Time,
promptly take all necessary actions to name such Electing Holder as a
selling securityholder in the Shelf Registration Statement and, in the
event a post-effective amendment to the Shelf Registration Statement is
required, cause such amendment to be declared effective as promptly as
practicable after receipt of such Notice and Questionnaire.
(b) The Company shall give written notice to the Initial
Purchaser, the Holders of the Securities and any Participating
Broker-Dealer from whom the
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Company has received prior written notice that it will be a
Participating Broker-Dealer in the Registered Exchange Offer (which
notice pursuant to clauses (ii)-(v) hereof shall be accompanied by an
instruction to suspend the use of the prospectus until the requisite
changes have been made):
(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;
(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 the Company or its legal
counsel of any notification with respect to the suspension of
the qualification of the Securities 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
Company to make changes in the Registration Statement or the
prospectus in order that the Registration Statement or the
prospectus do not contain an untrue statement of a material
fact nor omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the
case of the prospectus, in light of the circumstances under
which they were made) not misleading.
(c) The Company shall make every reasonable effort to obtain
the withdrawal at the earliest possible time, of any order suspending
the effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of Securities
included within the coverage of the Shelf Registration, without charge,
at least one copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits
thereto (including those, if any, incorporated by reference).
(e) The Company shall deliver to each Exchanging Dealer and
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 thereto (including those incorporated by
reference).
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(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Securities included within the coverage of
the Shelf Registration, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in the
Shelf Registration Statement and any amendment or supplement thereto as
such person may reasonably request. The Company consents, 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 in connection with the offering and sale of the Securities
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
Exchanging Dealer, 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
Company consents, 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 Securities 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 pursuant to
any Registration Statement the Company shall register or qualify or
cooperate with the Holders of the Securities included therein and their
respective counsel in connection with the registration or qualification
of the Securities for offer and sale under the securities or "blue sky"
laws of such states of the United States as any Holder of the
Securities 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 such Registration Statement;
provided, however, that the Company 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 Company shall cooperate with the Holders of the
Securities to facilitate the timely preparation and delivery of
certificates representing the Securities to be sold pursuant to any
Registration Statement 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 pursuant to
such Registration Statement.
(j) Upon the occurrence of any event contemplated by
paragraphs (ii) through (v) of Section 3(b) above during the period for
which the Company is required to maintain an effective Registration
Statement, the Company shall
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promptly prepare and file a post-effective amendment to the
Registration Statement or a supplement to the related prospectus and
any other required document so that, as thereafter delivered to Holders
of the Securities or purchasers of Securities, the prospectus will not
contain an 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. If the Company notifies the Initial Purchaser,
the Holders of the Securities and any known Participating Broker-Dealer
in accordance with paragraphs (ii) through (v) of Section 3(b) 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 and including the date when the
Initial Purchaser, the 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
Exchange Securities or the Private Exchange Securities, as the case may
be, and provide the applicable trustee with printed certificates for
the Exchange Securities or the Private Exchange Securities, as the case
may be, in a form eligible for deposit with The Depository Trust
Company.
(l) The Company 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 security 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 Registration Statement, which statement shall cover such
12-month period.
(m) The Company shall cause the Indenture to be qualified
under the Trust Indenture Act of 1939, as amended, in a timely manner
and containing such changes, if any, as shall be necessary for such
qualification. 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.
(n) The Company may require each Holder of 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
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Company may from time to time reasonably require for inclusion in the
Shelf Registration Statement, and the Company may exclude from such
registration the Securities of any Holder that unreasonably fails to
furnish such information within a reasonable time after receiving such
request.
(o) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form
for an underwritten public offering by a foreign private issuer (within
the meaning of Rule 405 under the Securities Act), giving effect to
such variations as are reasonably required or appropriate for a foreign
private issuer organized under Australian law) 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 Company shall
(i) make reasonably available for inspection by the Holders of the
Securities, any underwriter participating in any disposition pursuant
to the 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 Company during normal
business hours at the office where normally kept and (ii) cause the
Company's officers, directors, employees, accountants and auditors 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, in each case, as
shall be reasonably necessary to enable such persons, 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 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; and provided, further, that
any information that is designated in writing by the Company as
confidential at the time of delivery, shall be kept confidential by the
Holder or by any such underwriter, attorney, accountant or other agent
except to the extent such information is required to be, and has been,
disclosed in the Shelf Registration Statement.
(q) In the case of any Shelf Registration, the Company, if
requested by any Holder of Securities covered thereby, shall use its
reasonable best efforts to cause (i) its counsel to deliver or cause to
be delivered an opinion and updates thereof relating to the Securities
in customary form addressed to such Holders and the managing
underwriters, if any, thereof and dated, in the case of the initial
opinion, the effective date of such Shelf Registration Statement (it
being agreed that the matters to be covered by such opinion shall
include in addition to the opinions set forth in Sections 6(c) - 6(f)
of the Purchase Agreement, opinions in respect of such additional
matters as are customary to be included in opinions for an underwritten
public offering by a foreign private issuer (withing the meaning of
Rule 405 under the Securities Act) of securities substantially similar
to the Securities covered by the Shelf Registration Statement, giving
effect to such
13
variations as are reasonably required or appropriate for a foreign
private issuer organized under Australian law; (ii) its officers to
execute and deliver all customary documents and certificates and
updates thereof requested by any underwriters of the applicable
Securities and (iii) its independent public accountants to provide to
the selling Holders of the applicable Securities and any underwriter
therefor a comfort letter in customary form and covering matters of the
type customarily covered in comfort letters in connection with primary
underwritten offerings by such foreign private issuers, subject to
receipt of appropriate documentation as contemplated, and only if
permitted, by Statement of Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if requested
by the Initial Purchaser or any known Participating Broker-Dealer, the
Company shall cause (i) its counsel to deliver to the Initial Purchaser
or such Participating Broker-Dealer a signed opinion in the form set
forth in Section 6(c)-(f) of the Purchase Agreement with such changes
as are customary in connection with the preparation of a Registration
Statement and (ii) 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 6(a) of the Purchase Agreement, with
appropriate date changes.
(s) If a Registered Exchange Offer or a Private Exchange is to
be consummated, upon delivery of the Initial Securities by Holders to
the Company (or to such other Person as directed by the Company) in
exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, the Company shall mark, or caused to be
marked, on the Initial Securities so exchanged that such Initial
Securities are being canceled in exchange for the Exchange Securities
or the Private Exchange Securities, as the case may be; in no event
shall the Initial Securities be marked as paid or otherwise satisfied.
(t) The Company will use its reasonable best efforts to (a) if
the Initial Securities have been rated prior to the initial sale of
such Initial Securities, confirm such ratings will apply to the
Securities covered by a Registration Statement, or (b) if the Initial
Securities were not previously rated, cause the Securities covered by a
Registration Statement to be rated with the appropriate rating
agencies, if so requested by Holders of a majority in aggregate
principal amount of Securities covered by such Registration Statement,
or by the managing underwriters, if any.
(u) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a member
of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules (the "RULES") of
the National Association of Securities Dealers, Inc. ("NASD")) thereof,
whether as a Holder of such Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or
otherwise, the Company will assist such broker-dealer in complying with
the requirements of such Rules, including, without limitation, by (i)
if such Rules,
14
including Rule 2720, shall so require, engaging a "qualified
independent underwriter" (as defined in Rule 2720) to participate in
the preparation of the Registration Statement relating to such
Securities, to exercise usual standards of due diligence in respect
thereto and, if any portion of the offering contemplated by such
Registration Statement is an underwritten offering or is made through a
placement or sales agent, to recommend the yield of such Securities,
(ii) indemnifying any such qualified independent underwriter to the
extent of the indemnification of underwriters provided in Section 5
hereof and (iii) providing such information to such broker-dealer as
may be required in order for such broker-dealer to comply with the
requirements of the Rules.
(v) The Company shall use its reasonable best efforts to take
all other steps necessary to effect the registration of the Securities
covered by a Registration Statement contemplated hereby.
4. Registration Expenses.
(a) All expenses incident to the Company's performance of and
compliance with this Agreement will be borne by the Company, regardless
of whether a Registration Statement is ever filed or becomes effective,
including without limitation;
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal
securities and state "blue sky" or securities laws;
(iii) all expenses of printing (including printing
certificates for the Securities to be issued in the Registered
Exchange Offer and the Private Exchange and printing of
Prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the
Company;
(v) all application and filing fees in connection
with listing the Exchange Securities on a national securities
exchange or automated quotation system pursuant to the
requirements hereof; and
(vi) all fees and disbursements of independent
certified public accountants of the Company (including the
expenses of any special audit and comfort letters required by
or incident to such performance).
The Company will bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses
of any person, including special experts, retained by the Company.
15
(b) In connection with any Registration Statement required by
this Agreement, the Company will reimburse the Initial Purchaser and
the Holders of Transfer Restricted Securities who are tendering Initial
Securities in the Registered Exchange Offer and/or selling or reselling
Securities pursuant to the "Plan of Distribution" contained in the
Exchange Offer Registration Statement or the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements of
not more than one counsel, who shall be Cravath, Swaine & Moore unless
another firm shall be chosen by the Holders of a majority in principal
amount of the Transfer Restricted Securities for whose benefit such
Registration Statement is being prepared. Except as provided in the
preceding sentence, each Holder of the Securities shall pay all of its
fees and expenses, including all fees and expenses of its counsel (and
any counsel to any underwriter participating in any disposition
pursuant to a Registration Statement), and shall pay all underwriting
discounts and commissions, and transfer taxes, if any, relating to the
disposition of such Holder's Transfer Restricted Securities pursuant to
a Registration Statement.
5. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Holder of the Securities, any Participating Broker-Dealer and each
person, if any, who controls such Holder or such Participating
Broker-Dealer within the meaning of the Securities Act or the Exchange
Act (each Holder, any Participating Broker-Dealer and such controlling
persons 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) 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 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 required to be stated therein or necessary to
make the statements therein 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 any such loss, claim, damage, liability or action in respect
thereof; provided, however, that (i) the Company 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 pertaining to such
Holder and furnished to the Company by or on behalf of such Holder
specifically for inclusion therein and (ii) with respect to any untrue
statement or omission or alleged untrue statement or omission made in
any
16
preliminary prospectus relating to a Shelf Registration Statement, the
indemnity agreement contained in this subsection (a) shall not inure to
the benefit of any Holder or Participating Broker-Dealer from whom the
person asserting any such losses, claims, damages or liabilities
purchased the Securities concerned, to the extent that (i) a prospectus
relating to such Securities was required to be delivered by such Holder
or Participating Broker-Dealer under the Securities Act in connection
with such purchase and any such loss, claim, damage or liability of
such Holder or Participating Broker-Dealer results from an untrue
statement or alleged untrue statement or omission or alleged omission
in a preliminary offering or final prospectus that was corrected in all
material respects in the final prospectus or an amendment or supplement
thereto and there was not sent or given to such person, at or prior to
the written confirmation of the sale of such Securities to such person,
a copy of the final prospectus, as supplemented or amended, if the
Company had previously furnished copies thereof to such Holder or
Participating Broker-Dealer or (ii) the indemnified party, after
receiving notice from the Company prior to the date of delivery of a
copy of the prospectus, of any event described in Sections 3(b)(ii)
through (v) hereto, thereafter failed to discontinue delivery of such
prospectus, as it may be supplemented or amended; provided further,
however, that this indemnity agreement will be in addition to any
liability which the Company may otherwise have to such Indemnified
Party. The Company shall also indemnify underwriters, their officers
and directors and each person who controls such underwriters within the
meaning of the Securities Act or 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) Each Holder of the Securities, severally and not jointly,
will indemnify and hold harmless the Company, each of the Company's
directors and officers, and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act
from and against any losses, claims, damages or liabilities or any
actions in respect thereof, to which the Company, any such directors
and officers, or any such 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 omission or alleged untrue
statement or omission was made in reliance upon and in conformity with
written information pertaining to such Holder and furnished to the
Company 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, the Company for any legal or
other expenses reasonably incurred by the Company or any such
controlling person in connection with investigating or defending any
loss, claim, damage, liability or action in respect thereof. This
indemnity agreement will be in
17
addition to any liability which such Holder may otherwise have to the
Company or any of its controlling persons.
(c) 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 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) or (b) 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 (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof 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. In no event shall an indemnifying party be liable for
fees and expenses of more than one counsel (in addition to any local
counsel) separate from its own counsel, for all indemnified parties in
connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement
of any pending or threatened action in respect of which any indemnified
party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i)
includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action, and
(ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to in subsection (a) or (b) above in such
proportion as is appropriate to reflect 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 that
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable
considerations. 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
18
relates to information supplied by the Company on the one hand or such
Holder or such other indemnified party, as the case may be, on the
other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision
of this Section 5(d), the Holders of the Securities 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
pursuant to a Registration Statement exceeds the amount of damages
which such Holders have 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. For purposes of this paragraph (d), each person, if
any, who controls such indemnified party within the meaning of the
Securities Act or the Exchange Act shall have the same rights to
contribution as such indemnified party and each person, if any, who
controls the Company within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 5 shall survive
the sale of the Securities pursuant to a Registration Statement and
shall remain in full force and effect, regardless of any termination or
cancelation of this Agreement or any investigation made by or on behalf
of any indemnified party.
6. Additional Interest Under Certain Circumstances.
(a) Additional interest (the "ADDITIONAL INTEREST") with
respect to the Securities shall be assessed as follows if any of the
following events occur (each such event in clauses (i) through (iv)
below being herein called a "REGISTRATION DEFAULT"):
(i) any Registration Statement required by this
Agreement is not filed with the Commission on or prior to the
applicable Filing Deadline;
(ii) any Registration Statement required by this
Agreement is not declared effective by the Commission on or
prior to the applicable Effectiveness Deadline;
(iii) the Registered Exchange Offer has not been
consummated on or prior to the Consummation Deadline; or
(iv) any Registration Statement required by this
Agreement has been declared effective by the Commission but
(A) such Registration
19
Statement thereafter ceases to be effective or (B) such
Registration Statement or the related prospectus ceases to be
usable in connection with resales of Transfer Restricted
Securities during the periods specified herein because either
(1) any event occurs as a result of which the related
prospectus forming part of such Registration Statement would
include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein in the light of the circumstances under which they
were made not misleading, or (2) it shall be necessary to
amend such Registration Statement or supplement the related
prospectus, to comply with the Securities Act or the Exchange
Act or the respective rules thereunder and, in the case of any
such amendments or supplements related solely to naming
additional Electing Holders as selling securityholders under a
Shelf Registration Statement, such amendments or supplements
are not filed and declared effective by the Commission within
five business days of the Company's receipt of the applicable
Notice and Questionnaire.
Each of the foregoing will constitute a Registration Default whatever the reason
for any such event and whether it is voluntary or involuntary or is beyond the
control of the Company or pursuant to operation of law or as a result of any
action or inaction by the Commission.
Additional Interest shall accrue on the Securities over and above the interest
set forth in the title of the Securities from and including the date on which
any such Registration Default shall occur to but excluding the date on which all
such Registration Defaults have been cured, at a rate of 0.25% per annum (the
"ADDITIONAL INTEREST RATE") for the first 90-day period immediately following
the occurrence of such Registration Default. The Additional Interest Rate shall
increase by an additional 0.25% per annum with respect to each subsequent 90-day
period until the date on which all Registration Defaults have been cured, up to
a maximum Additional Interest Rate of 1.0% per annum. Notwithstanding the
foregoing, Additional Interest shall not accrue on any Security that is no
longer a Transfer Restricted Security.
(b) A Registration Default referred to in Section 6(a)(iv)
hereof shall be deemed not to have occurred and be continuing in
relation to a Shelf Registration Statement or the related prospectus if
(i) such Registration Default has occurred principally as a result of
(x) the filing of a post-effective amendment to such Shelf Registration
Statement to incorporate annual audited financial information with
respect to the Company where such post-effective amendment is not yet
effective and needs to be declared effective to permit Holders to use
the related prospectus or (y) other material events, with respect to
the Company that would need to be described in such Shelf Registration
Statement or the related prospectus and (ii) in the case of clause (y),
the Company is proceeding promptly and in good faith to amend or
supplement such Shelf Registration Statement and related prospectus to
describe such events; provided, however that in the case of (y), the
Company may delay filing and distributing any such supplement or
amendment (and continue the suspension of the use of the prospectus) if
the Company determines in good faith
20
that such supplement or amendment would, in the reasonable judgment of
the Company, (A) interfere with or affect the negotiation or completion
of a transaction that is being contemplated by the Company, or (B)
involve initial or continuing disclosure obligations that are not in
the best interests of the Company's stockholders at such time;
provided, further, that neither such delay nor such suspension shall
extend for a period of more than 45 consecutive days or an aggregate of
90 days in any twelve-month period; provided, further, that in any case
if such Registration Default occurs for a continuous period in excess
of 45 days, Additional Interest shall be payable in accordance with the
above paragraph from the day such Registration Default occurs until
such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to Section
6(a) will be payable in cash on the regular interest payment dates with
respect to the Securities. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest Rate by
the principal amount of the Securities and further 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
basis of a 360-day year comprised of twelve 30-day months), and the
denominator of which is 360.
(d) "TRANSFER RESTRICTED SECURITIES" means each Security until
(i) the date on which such Security has been exchanged by a person
other than a broker-dealer for an Exchange Security freely transferable
under the Securities Act in the Registered Exchange Offer, (ii)
following the exchange by a broker-dealer in the Registered Exchange
Offer of an Initial Security for an Exchange Note, the date on which
such Exchange Note is sold to a purchaser who receives from such
broker-dealer on or prior to the date of such sale a copy of the
prospectus contained in the Exchange Offer Registration Statement,
(iii) the date on which such Security has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (iv) the date on which such Security is
distributed to the public pursuant to Rule 144 under the Securities Act
or is saleable pursuant to Rule 144(k) under the Securities Act.
7. Rules 144 and 144A. The Company shall use its reasonable best
efforts to file the reports required to be filed by it 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 request of any Holder of
Securities, make publicly available other information so long as necessary to
permit sales of their securities pursuant to Rules 144 and 144A. The Company
covenants that it will take such further action as any Holder of Securities may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Securities without registration under the Securities Act within
the limitation of the exemptions provided by Rules 144 and 144A (including the
requirements of Rule 144A(d)(4)). The Company will provide a copy of this
Agreement to prospective purchasers of Initial Securities identified to the
Company by the Initial Purchaser upon request. Upon the request of any Holder of
Initial Securities, the Company shall deliver to such Holder a written statement
as to whether it has complied with such requirements.
21
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
8. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("MANAGING UNDERWRITERS") will be selected by
the Holders of a majority in aggregate principal amount of such Transfer
Restricted Securities to be included in such offering.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
9. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any
failure by the Company to comply with its obligations under Section 1
and 2 hereof may result in material irreparable injury to the Initial
Purchaser or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial
Purchaser or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Sections 1 and 2
hereof. The Company further agrees to waive the defense in any action
for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not on or
after the date of this Agreement enter into any agreement with respect
to its securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions
hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the
holders of the Company's securities under any agreement in effect on
the date hereof.
(c) 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 Company and the written consent of the Holders of a majority in
principal amount of the Securities affected by such amendment,
modification, supplement, waiver or consents. Without the consent of
the Holder of each Security, however, no modification may change the
provisions relating to the payment of Additional Interest.
Notwithstanding the above, the parties hereto agree that if a
Subsidiary Guarantor is released from its obligations under Article 11
of the Indenture, pursuant to Section 11.07 thereof, such Subsidiary
Guarantor shall be deemed released from
22
all obligations under this Agreement without any further action
required on the part of any party hereto. At the request of the
Company, or the appropriate Subsidiary Guarantor, the Initial Purchaser
shall execute and deliver an appropriate instrument evidencing such
release.
(d) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery,
first-class mail, facsimile transmission, or air courier which
guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most
current address given by such Holder to the Company.
(2) if to the Initial Purchaser;
Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, NY 10010-3629
Fax No.: (212) 325-8278
Attention: Transactions Advisory Group
with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Fax No.: (212) 474-3700
Attention: Kris Heinzelman
(3) if to the Company, at its address as follows:
Burns Philp Capital Pty Limited
240, Larkin William Industrial Court
Fenton, MO 63026
Fax No.: (636) 349-8890
Attention: Herb Blum
with a copy to:
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, NY 10019-6092
Fax No.: (212) 259-6333
Attention: Frank Adams
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 receipt
is acknowledged by
23
recipient's facsimile machine operator, if sent by facsimile transmission; and
on the day delivered, if sent by overnight air courier guaranteeing next day
delivery.
(e) Third Party Beneficiaries. The Holders shall be third
party beneficiaries to the agreements made hereunder between the
Company, on the one hand, and the Initial Purchaser, on the other hand,
and shall have the right to enforce such agreements directly to the
extent they may deem such enforcement necessary or advisable to protect
their rights or the rights of Holders hereunder.
(f) Successors and Assigns. This Agreement shall be binding
upon the Company and its successors and assigns.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
(j) 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.
(k) Securities Held by the Company. Whenever the consent or
approval of Holders of a specified percentage of principal amount of
Securities is required hereunder, Securities held by the Company or its
affiliates (other than subsequent Holders of Securities if such
subsequent Holders are deemed to be affiliates solely by reason of
their holdings of such Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such
required percentage.
(l) Agent for Service; Submission to Jurisdiction; Waiver of
Immunities. By the execution and delivery of this Agreement, the
Company (i) acknowledges that it has, by separate written instrument,
irrevocably designated and appointed CT Corporation System (and any
successor entity), as its authorized agent upon which process may be
served in any suit or proceeding arising out of or relating to this
Agreement that may be instituted in any federal or state court in the
State of New York or brought under federal or state securities laws,
and acknowledges that CT Corporation System has accepted such
designation, (ii) submits to the nonexclusive jurisdiction of any such
court in any such suit or proceeding (except
24
for Burns Philp Food, S.A., which submits to the exclusive jurisdiction
of such courts), and (iii) agrees that service of process upon CT
Corporation System and written notice of said service to the Company
shall be deemed in every respect effective service of process upon it
in any such suit or proceeding. The Company further agrees to take any
and all action, including the execution and filing of any and all such
documents and instruments, as may be necessary to continue such
designation and appointment of CT Corporation System in full force and
effect so long as any of the Securities shall be outstanding. To the
extent that the Company may acquire any immunity from jurisdiction of
any court or from any legal process (whether through service of notice,
attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to itself or its property, it hereby
irrevocably waives such immunity in respect of this Agreement, to the
fullest extent permitted by law.
(m) German Subsidiary Guarantors. Each Subsidiary Guarantor
incorporated in Germany shall not be liable for any obligations under
this Agreement if and to the extent, at the time of enforcement of the
relevant obligations, payments with respect to such obligations, would
not be allowed pursuant to Sec. 30 of the German GmbH-Gesetz (German
Act on Limited Liability Companies) in order to preserve the registered
share capital (Stammkapital) of the relevant Subsidiary Guarantor or of
the partners of Deutsche Hefewerke GmbH & Co. OHG (Gessellschafter), as
the case may be.
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Issuers a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Initial Purchaser, the Issuers and the Guarantors in accordance with
its terms.
Very Truly Yours,
BURNS PHILP CAPITAL PTY LIMITED
(ACN 100 768 803)
By /s/ Helen Golding
---------------------------------------------
Name: Helen Golding
Title: Company Secretary and Group Legal
Counsel and Attorney
BURNS PHILP CAPITAL (U.S.) INC.
By /s/ Helen Golding
---------------------------------------------
Name: Helen Golding
Title: Company Secretary and Group Legal
Counsel
BURNS, PHILP & COMPANY LIMITED
(ACN 000 000 359)
By /s/ Helen Golding
---------------------------------------------
Name: Helen Golding
Title: Company Secretary and Group Legal
Counsel and Attorney
26
BPCUS1 INC.
By /s/ Helen Golding
---------------------------------------------
Name: Helen Golding
Title: Company Secretary and Group Legal
Counsel
BURNS PHILP INC.
By /s/ Frank H. Schoonyoung
---------------------------------------------
Name: Frank H. Schoonyoung
Title: Vice President
BURNS PHILP FOOD INC.
By /s/ Frank H. Schoonyoung
---------------------------------------------
Name: Frank H. Schoonyoung
Title: President
TONE BROTHERS, INC.
By /s/ Robert MacPherson
---------------------------------------------
Name: Robert MacPherson
Title: Vice President and Chief
Financial Officer
27
SUDAMERICANA DE LEVADURAS S.A. DE INVERSIONES
BURNS PHILP AUSTRALIA PTY LIMITED (ACN 101 664 082)
BURNS PHILP CAMELLIA PTY LIMITED (ACN 003 925 040)
BURNS PHILP FOOD HOLDINGS PTY LIMITED (ACN 000 003 010)
BURNS PHILP FOOD OVERSEAS HOLDINGS LIMITED (ACN 000 010 711)
BURNS PHILP FOOD OVERSEAS INVESTMENTS PTY LIMITED (ACN 101 664 840)
BURNS PHILP FOOD PROPERTIES PTY LIMITED (ACN 008 443 856)
BURNS PHILP FOOD SERVICES PTY LIMITED (ACN 003 994 250)
BURNS PHILP SOUTH AMERICA PTY LIMITED (ACN 072 208 309)
BURNS PHILP MIDDLE EAST PTY LIMITED (ACN 077 288 021)
BURNS PHILP OVERSEAS HOLDINGS LIMITED (ACN 004 474 551)
BURNS PHILP PAKISTAN PTY LIMITED (ACN 068 581 653)
BURNS PHILP TECHNOLOGY & DEVELOPMENT PTY LIMITED (ACN 003 994 241)
BURNS PHILP TECHNOLOGY PTY LIMITED (ACN 061 602 506)
BURNS PHILP TREASURY (AUSTRALIA) LIMITED (ACN 003 731 986)
INDONESIAN YEAST COMPANY PTY LIMITED (ACN 061 753 026)
MAURI FERMENTATION ARGENTINA PTY LIMITED (ACN 003 994 312)
MAURI FERMENTATION BRAZIL PTY LIMITED (ACN 060 142 038)
MAURI FERMENTATION CHILE PTY LIMITED (ACN 061 325 157)
MAURI FERMENTATION CHINA PTY LIMITED (ACN 051 675 775)
MAURI FERMENTATION INDIA PTY LIMITED (ACN 063 797 759)
MAURI FERMENTATION INDONESIA PTY LIMITED (ACN 001 515 617)
28
MAURI FERMENTATION MALAYSIA PTY LIMITED (ACN 051 611 628)
MAURI FERMENTATION PHILIPPINES PTY LIMITED (ACN 068 581 493)
MAURI FERMENTATION VIETNAM PTY LIMITED (ACN 066 107 426)
MAURI YEAST AUSTRALIA PTY LIMITED (ACN 003 853 656)
BPC1 PTY LIMITED (ACN 101 665 918)
BURNS PHILP FOOD LIMITED
BURNS PHILP ECUADOR S.A.
BURNS PHILP DEUTSCHLAND EXPORT NAHRUNGSMITTEL-VERTRIEBSGESELLSCHAFT MBH
BURNS PHILP DEUTSCHLAND GMBH
BURNS PHILP DEUTSCHLAND GRUNDBESITZ GMBH
DEUTSCHE HEFEWERKE GMBH & CO. OHG
DEUTSCHE HEFEWERKE VERWALTUNGS GMBH
BURNS PHILP GUATEMALA, S.A.
BURNS PHILP TREASURY (EUROPE) B.V.
BURNS PHILP NETHERLANDS EUROPEAN HOLDINGS B.V.
BURNS PHILP (NEW ZEALAND) LIMITED
NEW ZEALAND FOOD INDUSTRIES LIMITED
BURNS PHILP PERU S.A.C.
BURNS PHILP FOOD, S.A.
BURNS PHILP (U.K.) PLC
FLODDEN S.A.
GREENSTED S.A.
LEVADURA URUGUAYA S.A.
BURNS PHILP FINANCE NEW ZEALAND LIMITED
BURNS PHILP VENEZUELA, S.A.
By /s/ Helen Golding
----------------------------------------
Name: Helen Golding
Title: Attorney
29
The foregoing Registration Rights Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
By /s/ Malcolm Price
----------------------------------------
Name: Malcolm Price
Title: Managing Director
SCHEDULE A
SUBSIDIARY GUARANTOR JURISDICTION
Sudamericana de Levaduras S.A. de Inversiones Argentina
Burns Philp Australia Pty Limited Australia
Burns Philp Camellia Pty Limited Australia
Burns Philp Food Holdings Pty Limited Australia
Burns Philp Food Overseas Holdings Limited Australia
Burns Philp Food Overseas Investments Pty Limited Australia
Burns Philp Food Properties Pty Limited Australia
Burns Philp Food Services Pty Limited Australia
Burns Philp South America Pty Limited Australia
Burns Philp Middle East Pty Limited Australia
Burns Philp Overseas Holdings Limited Australia
Burns Philp Pakistan Pty Limited Australia
Burns Philp Technology & Development Pty Limited Australia
Burns Philp Technology Pty Limited Australia
Burns Philp Treasury (Australia) Limited Australia
Indonesian Yeast Company Pty Limited Australia
Mauri Fermentation Argentina Pty Limited Australia
Mauri Fermentation Brazil Pty Limited Australia
Mauri Fermentation Chile Pty Limited Australia
Mauri Fermentation China Pty Limited Australia
Mauri Fermentation India Pty Limited Australia
Mauri Fermentation Indonesia Pty Limited Australia
Mauri Fermentation Malaysia Pty Limited Australia
Mauri Fermentation Philippines Pty Limited Australia
Mauri Fermentation Vietnam Pty Limited Australia
Mauri Yeast Australia Pty Limited Australia
BPC1 Pty Limited Australia
Burns Philp Food Limited Canada
Burns Philp Ecuador S.A. Ecuador
Burns Philp Deutschland Export Germany
Nahrungsmittel-Vertriebsgesellschaft mbH
Burns Philp Deutschland GmbH Germany
Burns Philp Deutschland Grundbesitz GmbH Germany
Deutsche Hefewerke GmbH & Co. oHG Germany
Deutsche Hefewerke Verwaltungs GmbH Germany
Burns Philp Guatemala, S.A. Guatemala
Burns Philp Treasury (Europe) B.V Netherlands
Burns Philp Netherlands European Holdings B.V. Netherlands
Burns Philp (New Zealand) Limited New Zealand
New Zealand Food Industries Limited New Zealand
Burns Philp Peru S.A.C. Peru
Burns Philp Food, S.A. Spain
Burns Philp Inc. United States
Burns Philp Food Inc. United States
Tone Brothers, Inc. United States
Burns Philp (U.K.) Plc United Kingdom
ANNEX A
SUBSIDIARY GUARANTOR JURISDICTION
Flodden S.A. Uruguay
Greensted S.A. Uruguay
Levadura Uruguaya S.A. Uruguay
Burns Philp Finance New Zealand Limited New Zealand
Burns Philp Venezuela, S.A. Venezuela
BPCUS1 Inc. United States
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Initial Securities
where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Initial Securities, where such Initial Securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities. See "Plan of
Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired as a
result of market-making activities or other trading activities. The Company has
agreed that, for a period of 180 days after the Expiration Date, it will make
this prospectus, as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until , 200 ,
all dealers effecting transactions in the Exchange Securities may be required to
deliver a prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Securities. Any broker-dealer that resells Exchange Securities that were
received by it for its own account pursuant to the Exchange Offer and any broker
or dealer that participates in a distribution of such Exchange Securities may be
deemed to be an "underwriter" within the meaning of the Securities Act and any
profit on any such resale of Exchange Securities and any commission or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that, by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
Holders of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
- --------------------
(1) In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the inside front cover page of the Exchange Offer prospectus below the
Table of Contents.
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.