EXHIBIT 4.3
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REGISTRATION RIGHTS AGREEMENT
Dated as of February 12, 2004
By and Among
PLY GEM INDUSTRIES, INC.,
the GUARANTORS named herein
and
UBS SECURITIES LLC
and
DEUTSCHE BANK SECURITIES INC.,
CIBC WORLD MARKETS CORP. and
MERRIL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
as Initial Purchasers
9% Senior Subordinated Notes due 2012
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TABLE OF CONTENTS
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PAGE
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SECTION 1. DEFINITIONS..................................................1
SECTION 2. EXCHANGE OFFER...............................................4
SECTION 3. SHELF REGISTRATION...........................................7
SECTION 4. ADDITIONAL INTEREST..........................................8
SECTION 5. REGISTRATION PROCEDURES......................................9
SECTION 6. REGISTRATION EXPENSES.......................................17
SECTION 7. INDEMNIFICATION.............................................17
SECTION 8. RULES 144 AND 144A..........................................21
SECTION 9. UNDERWRITTEN REGISTRATIONS..................................21
SECTION 10. MISCELLANEOUS...............................................21
(a) NO INCONSISTENT AGREEMENTS..................................21
(b) ADJUSTMENTS AFFECTING REGISTRABLE NOTES.....................21
(c) AMENDMENTS AND WAIVERS......................................21
(d) NOTICES.....................................................22
(e) GUARANTORS..................................................23
(f) SUCCESSORS AND ASSIGNS......................................23
(g) COUNTERPARTS................................................23
(h) HEADINGS....................................................23
(i) GOVERNING LAW...............................................23
(j) SEVERABILITY................................................23
(k) SECURITIES HELD BY THE ISSUERS OR THEIR AFFILIATES..........24
(l) THIRD-PARTY BENEFICIARIES...................................24
(m) ENTIRE AGREEMENT............................................24
SIGNATURES...................................................................S-1
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is dated as of
February 12, 2004, by and among PLY GEM INDUSTRIES, INC., a Delaware corporation
(the "COMPANY") and each of the Guarantors (as defined herein) (the Company and
the Guarantors are referred to collectively herein as the "ISSUERS"), on the one
hand, and UBS SECURITIES LLC (the "REPRESENTATIVE") and DEUTSCHE BANK SECURITIES
INC., CIBC WORLD MARKETS CORP. and MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED (together with the Representative, the "INITIAL PURCHASERS"), on
the other hand.
This Agreement is entered into in connection with the Purchase
Agreement, dated as of February 5, 2004, by and among the Issuers and the
Initial Purchasers (the "PURCHASE AGREEMENT"), relating to the offering of
$225,000,000 aggregate principal amount of 9% Senior Subordinated Notes due 2012
of the Company (including the guarantees thereof by the Guarantors, the
"NOTES"). The execution and delivery of this Agreement is a condition to the
Initial Purchasers' obligation to purchase the Notes under the Purchase
Agreement.
The parties hereby agree as follows:
Section 1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
"ACTION" shall have the meaning set forth in Section 7(c) hereof.
"ADDITIONAL INTEREST" shall have the meaning set forth in Section 4(a)
hereof.
"ADVICE" shall have the meaning set forth in Section 5 hereof.
"ADDITIONAL INTEREST PAYMENT DATE" shall have the meaning set forth in
Section 4(b) hereof.
"AGREEMENT" shall have the meaning set forth in the first introductory
paragraph hereto.
"APPLICABLE PERIOD" shall have the meaning set forth in Section 2(b)
hereof.
"BOARD OF DIRECTORS" shall have the meaning set forth in Section 5
hereof.
"BUSINESS DAY" shall mean a day that is not a Legal Holiday.
"COMPANY" shall have the meaning set forth in the introductory
paragraph hereto and shall also include the Company's permitted successors and
assigns.
"COMMISSION" shall mean the Securities and Exchange Commission.
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"DAY" shall mean a calendar day.
"DELAY PERIOD" shall have the meaning set forth in Section 5 hereof.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in Section 3(b)
hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE NOTES" shall have the meaning set forth in Section 2(a)
hereof.
"EXCHANGE OFFER" shall have the meaning set forth in Section 2(a)
hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall have the meaning set
forth in Section 2(a) hereof.
"GUARANTORS" means each subsidiary of the Company listed on the
signature page to this Agreement and each Person who executes and delivers a
counterpart of this Agreement after the date hereof pursuant to Section 10(e)
hereof.
"HOLDER" shall mean any holder of a Registrable Note or Registrable
Notes.
"INDENTURE" shall mean the Indenture, dated as of February 12, 2004, by
and among the Issuers and Trustee, as trustee, pursuant to which the Notes are
being issued, as amended or supplemented from time to time in accordance with
the terms thereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the first
introductory paragraph hereof.
"INSPECTORS" shall have the meaning set forth in Section 5(n) hereof.
"ISSUE DATE" shall mean February 12, 2004, the date of original
issuance of the Notes.
"ISSUERS" shall have the meaning set forth in the first introductory
paragraph hereto.
"LEGAL HOLIDAY" shall mean a Saturday, a Sunday or a day on which
banking institutions in New York, New York are required by law, regulation or
executive order to remain closed.
"LOSSES" shall have the meaning set forth in Section 7(a) hereof.
"NASD" shall mean National Association of Securities Dealers, Inc.
"NOTES" shall have the meaning set forth in the second introductory
paragraph hereto.
"PARTICIPANT" shall have the meaning set forth in Section 7(a) hereof.
"PARTICIPATING BROKER-DEALER" shall have the meaning set forth in
Section 2(b) hereof.
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"PERSON" shall mean an individual, corporation, partnership, joint
venture association, joint stock company, trust, unincorporated limited
liability company, government or any agency or political subdivision thereof or
any other entity.
"PRIVATE EXCHANGE" shall have the meaning set forth in Section 2(b)
hereof.
"PRIVATE EXCHANGE NOTES" shall have the meaning set forth in Section
2(b) hereof.
"PROSPECTUS" shall mean the prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"PURCHASE AGREEMENT" shall have the meaning set forth in the second
introductory paragraph hereof.
"RECORDS" shall have the meaning set forth in Section 5(n) hereof.
"REGISTRABLE NOTES" shall mean each Note upon its original issuance and
at all times subsequent thereto, each Exchange Note as to which Section 2(c)(iv)
hereof is applicable upon original issuance and at all times subsequent thereto
and each Private Exchange Note upon original issuance thereof and at all times
subsequent thereto, in each case until (i) a Registration Statement (other than,
with respect to any Exchange Note as to which Section 2(c)(iv) hereof is
applicable, the Exchange Offer Registration Statement) covering such Note,
Exchange Note or Private Exchange Note has been declared effective by the
Commission and such Note, Exchange Note or such Private Exchange Note, as the
case may be, has been disposed of in accordance with such effective Registration
Statement, (ii) such Note has been exchanged pursuant to the Exchange Offer for
an Exchange Note or Exchange Notes that may be resold without restriction under
state and federal securities laws, (iii) such Note, Exchange Note or Private
Exchange Note, as the case may be, ceases to be outstanding for purposes of the
Indenture or (iv) such Note, Exchange Note or Private Exchange Note has been
sold in compliance with Rule 144 or is salable pursuant to Rule 144(k).
"REGISTRATION DEFAULT" shall have the meaning set forth in Section 4(a)
hereof.
"REGISTRATION STATEMENT" shall mean any appropriate registration
statement of the Issuers covering any of the Registrable Notes filed with the
Commission under the Securities Act, and all amendments and supplements to any
such Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"REPRESENTATIVE" shall have the meaning set forth in the introductory
paragraph hereto.
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"REQUESTING PARTICIPATING BROKER-DEALER" shall have the meaning set
forth in Section 2(b) hereof.
"RULE 144" shall mean Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the Commission providing for offers and
sales of securities made in compliance therewith resulting in offers and sales
by subsequent holders that are not affiliates of an issuer of such securities
being free of the registration and prospectus delivery requirements of the
Securities Act.
"RULE 144A" shall mean Rule 144A promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule (other than
Rule 144) or regulation hereafter adopted by the Commission.
"RULE 415" shall mean Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"SHELF FILING EVENT" shall have the meaning set forth in Section 2(c)
hereof.
"SHELF REGISTRATION" shall have the meaning set forth in Section 3(a)
hereof.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"TRUSTEE" shall mean the trustee under the Indenture and the trustee
(if any) under any indenture governing the Exchange Notes and Private Exchange
Notes.
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING" shall mean a
registration in which securities of the Issuers are sold to an underwriter for
reoffering to the public.
Section 2. EXCHANGE OFFER
(a) Unless the Exchange Offer would violate applicable law or
interpretation of the staff of the Commission, the Issuers shall (i) file a
Registration Statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") with the
Commission on an appropriate registration form with respect to a registered
offer (the "EXCHANGE OFFER") to exchange any and all of the Registrable Notes
for a like aggregate principal amount of notes (including the guarantees with
respect thereto, the "EXCHANGE NOTES") that are identical in all material
respects to the Notes (except that the Exchange Notes shall not contain
restrictive legends, terms with respect to transfer restrictions or Additional
Interest upon a Registration Default), (ii) use their commercially reasonable
efforts to cause the Exchange Offer Registration Statement to be declared
effective under the Securities Act and (iii) use their commercially reasonable
efforts to consummate the Exchange Offer within 210 days after the Issue Date
(or, if such 210th day is not a Business Day, on or prior to the first Business
Day thereafter). Upon the Exchange Offer Registration Statement being declared
effective by the Commission, the Issuers will offer the
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Exchange Notes in exchange for surrender of the Notes. The Issuers shall keep
the Exchange Offer open for not less than 30 days (or longer if required by
applicable law) after the date notice of the Exchange Offer is mailed to
Holders.
Each Holder that participates in the Exchange Offer will be required to
represent to the Issuers in writing that (i) any Exchange Notes to be received
by it will be acquired in the ordinary course of its business, (ii) it has no
arrangement or understanding with any Person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Notes in violation of
the provisions of the Securities Act, (iii) it is not an affiliate of the
Company or any Guarantor as defined by Rule 405 of the Securities Act, or if it
is an affiliate, it 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, it is not engaged in, and does not intend to engage in,
a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that
will receive Exchange Notes for its own account in exchange for Notes that were
acquired as a result of market-making or other trading activities (a
"PARTICIPATING BROKER-DEALER"), it will deliver a prospectus in connection with
any resale of such Exchange Notes.
(b) The Issuers and the Initial Purchasers acknowledge that the
staff of the Commission has taken the position that any Participating
Broker-Dealer may be deemed to be an "underwriter" within the meaning of the
Securities Act and must deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such Exchange Notes (other than
a resale of an unsold allotment resulting from the original offering of the
Notes).
The Issuers and the Initial Purchasers also acknowledge that the staff
of the Commission has taken the position that if the Prospectus contained in the
Exchange Offer Registration Statement includes a plan of distribution containing
a statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Notes, without naming the Participating
Broker-Dealers or specifying the amount of Exchange Notes owned by them, such
Prospectus may be delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligations under the Securities Act in connection with
resales of Exchange Notes for their own accounts, so long as the Prospectus
otherwise meets the requirements of the Securities Act.
In light of the foregoing, if requested by a Participating
Broker-Dealer (a "REQUESTING PARTICIPATING BROKER-DEALER"), the Issuers agree to
use their commercially reasonable efforts to keep the Exchange Offer
Registration Statement continuously effective for a period necessary to comply
with applicable law in connection with such resales but in no event more than
180 days after the date on which the Exchange Offer Registration Statement is
declared effective, or such longer period if extended pursuant to any Delay
Period in accordance with the last paragraph of Section 5 hereof, or such
earlier date as each Requesting Participating Broker-Dealer shall have notified
the Company in writing that such Requesting Participating Broker-Dealer has
resold all Exchange Notes acquired by it in the Exchange Offer (such period, the
"APPLICABLE PERIOD"). The Issuers shall include a plan of distribution in such
Exchange Offer Registration Statement that meets the requirements set forth in
the preceding paragraph.
If, prior to consummation of the Exchange Offer, any Initial Purchaser
or any other Holder holds any Notes acquired by it that have, or that are
reasonably likely to be determined to have, the status of an unsold allotment in
an initial distribution, or if any Holder is not entitled to participate
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in the Exchange Offer, the Issuers upon the request of any such Initial
Purchaser or any such Holder, as the case may be, shall simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the
Initial Purchasers or any such Holder, as the case may be, in exchange (the
"PRIVATE EXCHANGE") for such Notes held by such Initial Purchaser or any such
Holder a like principal amount of notes (the "PRIVATE EXCHANGE NOTES") of the
Issuers that are identical in all material respects to the Exchange Notes except
that the Private Exchange Notes may be subject to restrictions on transfer and
bear a legend to such effect. The Private Exchange Notes shall be issued
pursuant to the same indenture as the Exchange Notes and bear the same CUSIP
number as the Exchange Notes (if permitted by the CUSIP Service Bureau).
Upon consummation of the Exchange Offer in accordance with this Section
2, the Issuers shall have no further registration obligations other than the
Issuers' continuing registration obligations with respect to (i) Private
Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and
(iii) Notes or Exchange Notes as to which clause (c)(iv) of this Section 2
applies.
In connection with the Exchange Offer, the Issuers shall:
(1) mail or cause to be mailed to each Holder entitled to
participate in the Exchange Offer a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer
with an address in the Borough of Manhattan, The City of New York, which
may be the Trustee or an affiliate of the Trustee;
(3) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York time, on the last Business Day on which the
Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer and the
Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Notes validly tendered and not validly
withdrawn by the Holders pursuant to the Exchange Offer and the Private
Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for
cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case
may be, equal in principal amount to the Registrable Notes of such Holder
so accepted for exchange.
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The Exchange Offer and the Private Exchange shall not be subject to any
conditions, other than that (i) the Exchange Offer or Private Exchange, as the
case may be, does not violate applicable law or any applicable interpretation of
the staff of the Commission, (ii) no action or proceeding shall have been
instituted or threatened in any court or by any governmental agency which might
materially impair the ability of the Issuers to proceed with the Exchange Offer
or the Private Exchange, and no material adverse development shall have occurred
in any existing action or proceeding with respect to the Issuers and (iii) all
governmental approvals shall have been obtained, which approvals the Company
deems necessary for the consummation of the Exchange Offer or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be issued under
(i) the Indenture or (ii) an indenture identical in all material respects to the
Indenture (in either case, with such changes as are necessary to comply with any
requirements of the Commission to effect or maintain the qualification thereof
under the TIA) and which, in either case, has been qualified under the TIA and
shall provide that (a) the Exchange Notes shall not be subject to the transfer
restrictions set forth in the Indenture and (b) the Private Exchange Notes shall
be subject to the transfer restrictions set forth in the Indenture. The
Indenture or such indenture shall provide that the Exchange Notes, the Private
Exchange Notes and the Notes shall vote and consent together on all matters as
one class and that none of the Exchange Notes, the Private Exchange Notes or the
Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable
interpretations of the staff of the Commission do not permit the Issuers to
effect the Exchange Offer, (ii) for any reason the Exchange Offer is not
consummated within 210 days of the Issue Date, or if such 210th day is not a
Business Day, on or prior to the first Business Day thereafter, (iii) any Holder
notifies the Company prior to the 30th day following consummation of the
Exchange Offer that it is prohibited by law or applicable interpretations of the
staff of the Commission from participating in the Exchange Offer, (iv) in the
case of any Holder who participates in the Exchange Offer, such Holder notifies
the Company prior to the 30th day following the consummation of the Exchange
Offer that it did not receive Exchange Notes on the date of the exchange that
may be sold without restriction under state and federal securities laws (other
than due solely to the status of such Holder as an affiliate of any Issuer
within the meaning of the Securities Act) or (v) any Initial Purchaser so
requests with respect to Notes or Private Exchange Notes that have, or that are
reasonably likely to be determined to have, the status of unsold allotments in
an initial distribution (each such event referred to in clauses (i) through (v)
of this sentence, a "SHELF FILING EVENT"), then the Issuers shall file a Shelf
Registration pursuant to Section 3 hereof.
Section 3. SHELF REGISTRATION
If at any time a Shelf Filing Event shall occur, then:
(a) SHELF REGISTRATION. The Issuers shall file with the Commission
a Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Registrable Notes not exchanged in the
Exchange Offer, Private Exchange Notes and Exchange Notes as to which Section
2(c)(iv) is applicable (the "SHELF REGISTRATION"). The Shelf Registration shall
be on Form S-1 or another appropriate form permitting registration of such
Registrable Notes for resale by Holders in the manner or manners designated by
them
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(including, without limitation, one or more underwritten offerings). The Issuers
shall not permit any securities other than the Registrable Notes to be included
in the Shelf Registration.
(b) The Issuers shall use their commercially reasonable efforts
(x) to cause the Shelf Registration to be declared effective under the
Securities Act on or prior to the 180th day after the occurrence of the
applicable Shelf Filing Event and (y) to keep the Shelf Registration
continuously effective under the Securities Act for the lesser of two years from
the Issue Date and the time period referred to in Rule 144(k) under the
Securities Act (the "EFFECTIVENESS PERIOD"), or such shorter period ending when
all Registrable Notes covered by the Shelf Registration have been sold in the
manner set forth and as contemplated in the Shelf Registration; PROVIDED,
HOWEVER, that (i) the Effectiveness Period in respect of the Shelf Registration
shall be extended to the extent required to permit dealers to comply with the
applicable prospectus delivery requirements of Rule 174 under the Securities Act
and (ii) the Company may suspend the effectiveness of the Shelf Registration by
written notice to the Holders solely (A) as a result of the filing of a
post-effective amendment to the Shelf Registration 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 (B) to the extent and for so long as
permitted by the penultimate paragraph of Section 5.
(c) SUPPLEMENTS AND AMENDMENTS. The Issuers agree to supplement or
make amendments to the Shelf Registration as and when required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration or by the Securities Act or rules and regulations thereunder
for shelf registration.
Section 4. ADDITIONAL INTEREST
(a) The Issuers and the Initial Purchasers agree that the Holders
will suffer damages if the Issuers fail to fulfill their obligations under
Section 2 or Section 3 hereof and that it would not be feasible to ascertain the
extent of such damages with precision. Accordingly, the Issuers agree that if:
(i) the Exchange Offer is not consummated on or prior to
the 210th day following the Issue Date, or, if that day is not a
Business Day, the next day that is a Business Day; or
(ii) the Shelf Registration is required to be filed but is
not declared effective within the time period specified in Section
3(b)(x), or is declared effective by such date but thereafter ceases to
be effective or usable (unless the Shelf Registration ceases to be
effective or usable as specifically permitted by the penultimate
paragraph of Section 5 hereof),
(each such event referred to in clauses (i) and (ii) a "REGISTRATION DEFAULT"),
additional interest in the form of additional cash interest ("ADDITIONAL
INTEREST") will accrue on the Registrable Notes required to be registered on a
Shelf Registration. The rate of Additional Interest will be 0.25% per annum for
the first 90-day period immediately following the occurrence of a Registration
Default, increasing by an additional 0.25% per annum with respect to each
subsequent 90-day period up to a maximum amount of Additional Interest of 1.00%
per annum, from and including the date on which any such Registra-
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tion Default shall occur to, but excluding, the earlier of (1) the date on which
all Registration Defaults have been cured or (2) the date on which such
Registrable Note ceases to be a Registrable Note or otherwise become freely
transferable by Holders other than affiliates of the Issuers without further
registration under the Securities Act. If, after the cure of all Registration
Defaults then in effect, there is a subsequent Registration Default, the rate of
Additional Interest for such subsequent Registration Default shall initially be
0.25% regardless of the rate in effect with respect to any prior Registration
Default at the time of cure of such Registration Default and shall increase in
the manner and be subject to the maximum Additional Interest rate contained in
the preceding sentence.
Notwithstanding the foregoing, (1) the amount of Additional Interest
payable shall not increase because more than one Registration Default has
occurred and is pending and (2) a Holder of Registrable Notes that is not
entitled to the benefits of the Shelf Registration (E.G., such Holder has not
elected to include information with respect to itself in such Shelf
Registration) shall not be entitled to Additional Interest with respect to a
Registration Default that pertains to the Shelf Registration.
(b) So long as Notes remain outstanding, the Company shall notify
the Trustee within five Business Days after each and every date on which an
event occurs in respect of which Additional Interest is required to be paid. Any
amounts of Additional Interest due pursuant to clauses (a)(i) or (a)(ii) of this
Section 4 will be payable in cash semi-annually on each February 15 and August
15 (each an "ADDITIONAL INTEREST PAYMENT DATE"), commencing with the first such
date occurring after any such Additional Interest commences to accrue, to
Holders to whom regular interest is payable on such Additional Interest Payment
Date with respect to Notes that are Registrable Notes. The amount of Additional
Interest for each Registrable Note will be determined by multiplying the
applicable rate of Additional Interest by the aggregate principal amount of such
Registrable Note outstanding on the Additional Interest Payment Date following
such Registration Default in the case of the first such payment of Additional
Interest with respect to a Registration Default (and thereafter at the next
succeeding Additional Interest Payment Date until the cure of such Registration
Default), and multiplying the product of the foregoing 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, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
The Initial Purchasers and the Holders acknowledge and agree that the
Additional Interest provided by this Section 4 of this Agreement shall be the
exclusive monetary remedy available to Holders for any Registration Default.
Section 5. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement pursuant to
Section 2 or 3 hereof, the Issuers shall effect such registrations to permit the
sale of the securities covered thereby in accordance with the intended method or
methods of disposition thereof, and pursuant thereto and in connection with any
Registration Statement filed by the Issuers hereunder, the Issuers shall:
(a) Prepare and file with the Commission the Registration
Statement or Registration Statements prescribed by Section 2 or 3 hereof, and
use their commercially reasonable efforts to cause each such Registration
Statement to become effective and remain effective as
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provided herein; PROVIDED, HOWEVER, that, if (1) such filing is pursuant to
Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period relating thereto, before
filing any Registration Statement or Prospectus or any amendments or supplements
thereto, the Issuers shall furnish to and afford the Holders of the Registrable
Notes covered by such Registration Statement or each such Participating
Broker-Dealer, as the case may be, their counsel (if requested by any such
person) and the managing underwriters, if any, a reasonable opportunity to
review copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be
filed. The Issuers shall not file any Registration Statement or Prospectus or
any amendments or supplements thereto if the Holders of a majority in aggregate
principal amount of the Registrable Notes covered by such Registration
Statement, or any such Participating Broker-Dealer, as the case may be, their
counsel, or the managing underwriters, if any, shall reasonably object.
(b) Use their reasonable commercial efforts to prepare and file
with the Commission such amendments and post-effective amendments to each Shelf
Registration or Exchange Offer Registration Statement, as the case may be, as
may be necessary to keep such Registration Statement continuously effective for
the Effectiveness Period or the Applicable Period, as the case may be; cause the
related Prospectus to be supplemented by any Prospectus supplement required by
applicable law, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) promulgated under the Securities Act; and
comply with the applicable provisions of the Securities Act and the Exchange Act
with respect to the disposition of all securities covered by such Registration
Statement as so amended or in such Prospectus as so supplemented and with
respect to the subsequent resale of any securities being sold by a Participating
Broker-Dealer covered by any such Prospectus, in each case, in accordance with
the intended methods of distribution set forth in such Registration Statement or
Prospectus, as so amended or supplemented.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period relating thereto from whom the Company has
received written notice that such broker-dealer will be a Participating
Broker-Dealer in the applicable Exchange Offer, notify the selling Holders of
Registrable Notes, or each such Participating Broker-Dealer, as the case may be,
their counsel (if such counsel is known to the Issuers) and the managing
underwriters, if any, as promptly as possible, and, if requested by any such
Person, confirm such notice in writing, (i) when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective under the Securities Act (including in such notice a written statement
that any Holder may, upon request, obtain, at the sole expense of the Issuers,
one conformed copy of such Registration Statement or post-effective amendment
including financial statements and schedules, documents incorporated or deemed
to be incorporated by reference and exhibits), (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus or
-11-
the initiation of any proceedings for that purpose, (iii) if at any time when a
Prospectus is required by the Securities Act to be delivered in connection with
sales of the Registrable Notes or resales of Exchange Notes by Participating
Broker-Dealers the representations and warranties of the Issuers contained in
any agreement (including any underwriting agreement) contemplated by Section
5(m) hereof cease to be true and correct in all material respects, (iv) of the
receipt by any of the Issuers of any notification with respect to the suspension
of the qualification or exemption from qualification of a Registration Statement
or any of the Registrable Notes or the Exchange Notes for offer or sale in any
jurisdiction, or the initiation or threatening of any proceeding for such
purpose, (v) of the making of any changes in or amendments or supplements to
such Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and (vi) of the Company's determination that a
post-effective amendment to a Registration Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, use their commercially reasonable efforts to
prevent the issuance of any order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of any of the
Registrable Notes or the Exchange Notes, as the case may be, for sale in any
jurisdiction, and, if any such order is issued, to use their commercially
reasonable efforts to obtain the withdrawal of any such order at the earliest
practicable moment.
(e) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period and if requested by the managing underwriter
or underwriters (if any), the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration Statement or any
Participating Broker-Dealer, as the case may be, (i) promptly incorporate in
such Registration Statement or Prospectus a prospectus supplement or
post-effective amendment such information as the managing underwriter or
underwriters (if any), such Holders or any Participating Broker-Dealer, as the
case may be (based upon advice of counsel), determine is reasonably required to
be included therein and (ii) make all required filings of such prospectus
supplement or such post-effective amendment as soon as practicable after the
Company has received notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment; PROVIDED, HOWEVER, that the
Issuers shall not be required to take any action hereunder that would violate
applicable laws.
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(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, furnish to each selling Holder of
Registrable Notes or each such Participating Broker-Dealer, as the case may be,
who so requests, their counsel (if requested by any such person) and each
managing underwriter, if any, at the sole expense of the Issuers, one conformed
copy of the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and schedules,
and, if requested, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, deliver to each selling Holder of
Registrable Notes or each such Participating Broker-Dealer, as the case may be,
their respective counsel (if requested) and the underwriters, if any, at the
sole expense of the Issuers, as many copies of the Prospectus or Prospectuses
(including each form of preliminary prospectus) and each amendment or supplement
thereto and any documents incorporated by reference therein as such Persons may
reasonably request; and, subject to the last paragraph of this Section 5, the
Issuers hereby consent to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders of Registrable Notes or each
such Participating Broker-Dealer, as the case may be, and the underwriters or
agents, if any, and dealers (if any), in connection with the offering and sale
of the Registrable Notes covered by, or the sale by Participating Broker-Dealers
of the Exchange Notes pursuant to, such Prospectus and any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Notes or Exchange
Notes or any delivery of a Prospectus contained in the Exchange Offer
Registration Statement by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, use their commercially reasonable
efforts to register or qualify, and to cooperate with the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the case may be,
the managing underwriter or underwriters, if any, and their respective counsel
in connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Notes or Exchange Notes, as
the case may be, for offer and sale under the securities or Blue Sky laws of
such jurisdictions within the United States as any selling Holder, Participating
Broker-Dealer, or the managing underwriter or underwriters reasonably request;
keep each such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept effective
and do any and all other acts or things reasonably necessary to enable the
disposition in such jurisdictions of such Exchange Notes or Registrable Notes
covered by the applicable Registration Statement; PROVIDED, HOWEVER, that no
Issuer shall be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or (C) subject itself to taxation in any such jurisdiction
where it is not then so subject.
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(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold, which
certificates, consistent with the Indenture, shall not bear any restrictive
legends and shall be in a form eligible for deposit with The Depository Trust
Company; and enable such Registrable Notes to be in such denominations and
registered in such names as the managing underwriter or underwriters, if any, or
selling Holders may reasonably request a reasonable period of time prior to any
sale of such Registrable Notes.
(j) Use their commercially reasonable efforts to cause the
Registrable Notes or Exchange Notes covered by any Registration Statement to be
registered with or approved by such other governmental agencies or authorities
as may be reasonably necessary to enable the seller or sellers thereof or the
underwriter or underwriters, if any, to consummate the disposition of such
Registrable Notes or Exchange Notes, except as may be required solely as a
consequence of the nature of such selling Holder's business, in which case the
Issuers will cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, upon the occurrence of any event
contemplated by Section 5(c)(v) or 5(c)(vi) hereof, as promptly as practicable
prepare and (subject to Section 5(a) and the penultimate paragraph of this
Section 5) file with the Commission, at the sole expense of the Issuers, a
supplement or post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable Notes being
sold thereunder or to the purchasers of the Exchange Notes to whom such
Prospectus will be delivered by a Participating Broker-Dealer, any such
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(l) On or prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes in a form eligible for deposit with The
Depository Trust Company and (ii) provide a CUSIP number for the Registrable
Notes.
(m) In connection with any underwritten offering of Registrable
Notes pursuant to a Shelf Registration, enter into an underwriting agreement as
is customary in underwritten offerings of debt securities similar to the Notes
and take all such other actions as are reasonably requested by the managing
underwriter or underwriters in order to expedite or facilitate the registration
or the disposition of such Registrable Notes and, whether or not such offering
is an underwritten offering, (i) use their commercially reasonable efforts to
obtain the written opinions of counsel to the Issuers and written updates
thereof in form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters, addressed to the underwriters (and to any Holder
that has advised the Company that such Holder may have a "due diligence" defense
under Section 11 of the Securities Act) covering the matters customarily covered
in opinions requested in underwritten offerings; and (ii) use their commercially
reasonable efforts to obtain "cold comfort" letters and updates thereof in form,
scope and substance
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reasonably satisfactory to the managing underwriter or underwriters from the
independent certified public accountants of the Issuers (and, if necessary, any
other independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements and
financial data are, or are required to be, included or incorporated by reference
in the Registration Statement), addressed to each of the underwriters (and to
any Holder that has advised the Company that such Holder may have a "due
diligence" defense under Section 11 of the Securities Act), such letters to be
in customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings.
(n) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, make available for inspection by any selling
Holder of such Registrable Notes being sold or each such Participating
Broker-Dealer, as the case may be, any underwriter participating in any such
disposition of Registrable Notes, if any, and any attorney, accountant or other
agent retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"INSPECTORS"), at the offices where normally kept, during reasonable business
hours, all financial and other records, pertinent corporate documents and
instruments of the Company and its subsidiaries (collectively, the "RECORDS") as
shall be reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and employees of
the Company and its subsidiaries to supply all information reasonably requested
by any such Inspector in connection with such Registration Statement and
Prospectus. Each Inspector shall agree in writing that it will keep the Records
confidential and that it will not disclose, or use in connection with any market
transactions in violation of any applicable securities laws, any Records that
the Company determines, in good faith, to be confidential and that it notifies
the Inspectors in writing are confidential unless (i) the disclosure of such
Records is necessary to avoid or correct a material misstatement or omission in
such Registration Statement or Prospectus, (ii) the release of such Records is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction, (iii) disclosure of such information is necessary or advisable in
the opinion of counsel for an Inspector in connection with any action, claim,
suit or proceeding, directly or indirectly, involving or potentially involving
such Inspector and arising out of, based upon, relating to, or involving this
Agreement or the Purchase Agreement, or any transactions contemplated hereby or
thereby or arising hereunder or thereunder, or (iv) the information in such
Records has been made generally available to the public; PROVIDED, HOWEVER, that
(i) each Inspector shall agree to provide notice to the Company of the potential
disclosure of any information by such Inspector pursuant to clause (i), (ii) or
(iii) of this sentence to permit the Issuers to obtain a protective order (or
waive the provisions of this paragraph (n)) and (ii) each such Inspector shall
take such actions as are reasonably necessary to protect the confidentiality of
such information (if practicable) to the ex-
-15-
tent such action is otherwise not inconsistent with, an impairment of or in
derogation of the rights and interests of the Holder or any Inspector.
(o) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof to be qualified under the TIA not
later than the effective date of the Exchange Offer or the first Registration
Statement relating to the Registrable Notes; and in connection therewith,
cooperate with the trustee under any such indenture and the Holders of the
Registrable Notes or Exchange Notes, as applicable, to effect such changes to
such indenture as may be required for such indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use their commercially
reasonable efforts to cause such trustee to execute, all documents as may be
required to effect such changes, and all other forms and documents required to
be filed with the Commission to enable such indenture to be so qualified in a
timely manner.
(p) Comply in all material respects with all applicable rules and
regulations of the Commission and make generally available to the Company's
securityholders earnings statements satisfying the provisions of Section 11(a)
of the Securities Act and Rule 158 thereunder (or any similar rule promulgated
under the Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period is a
fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Notes or Exchange Notes are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods consistent with
the requirements of Rule 158.
(q) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the Company
(or to such other Person as directed by the Company) in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be, mark, or cause
to be marked, on such Registrable Notes that such Registrable Notes are being
cancelled in exchange for the Exchange Notes or the Private Exchange Notes, as
the case may be; PROVIDED that in no event shall such Registrable Notes be
marked as paid or otherwise satisfied.
(r) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in connection
with any filings reasonably required to be made with the NASD.
(s) Use their commercially reasonable efforts to take all other
steps reasonably necessary or advisable to effect the registration of the
Exchange Notes and/or Registrable Notes covered by a Registration Statement
contemplated hereby.
The Company may require each seller of Registrable Notes or Exchange
Notes as to which any registration is being effected to furnish to the Company
such information regarding such seller and the distribution of such Registrable
Notes or Exchange Notes as the Company may, from time to time, reasonably
request. The Company may exclude from such registration the Registrable
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Notes of any seller so long as such seller fails to furnish such information
within a reasonable time after receiving such request and in the event of such
an exclusion, the Issuers shall have no further obligation under this Agreement
(including, without limitation, the obligations under Section 4) with respect to
such seller or any subsequent Holder of such Registrable Notes. Each seller as
to which any Shelf Registration is being effected agrees to furnish promptly to
the Company all information required to be disclosed in order to make any
information previously furnished to the Company by such seller not materially
misleading.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company or the Guarantors, then
such Holder shall have the right to require (i) the insertion therein of
language, in form and substance reasonably satisfactory to such Holder, to the
effect that the holding by such Holder of such securities is not to be construed
as a recommendation by such Holder of the investment quality of the securities
covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Company or the
Guarantors, or (ii) in the event that such reference to such Holder by name or
otherwise is not required by the Securities Act or any similar federal statute
then in force, the deletion of the reference to such Holder in any amendment or
supplement to the applicable Registration Statement filed or prepared subsequent
to the time that such reference ceases to be required.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or Exchange Notes that, upon the
Company providing notice to such Holder or Participating Broker-Dealer, as the
case may be, (x) of the happening of any event of the kind described in Section
5(c)(ii), 5(c)(iii), 5(c)(iv) or 5(c)(v) hereof, or (y) that the Board of
Directors of the Company (the "BOARD OF Directors") has resolved that the
Company has a BONA FIDE business purpose for doing so, then, upon providing such
notice (which shall refer to the penultimate paragraph of this Section 5), the
Issuers may delay the filing or the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration (if not then filed or
effective, as applicable) and shall not be required to maintain the
effectiveness thereof or amend or supplement the Exchange Offer Registration
Statement or the Shelf Registration, in all cases, for a period (a "DELAY
Period") expiring upon the earlier to occur of (i) in the case of the
immediately preceding clause (x), such Holder's or Participating Broker-Dealer's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(k) hereof or until it is advised in writing (the "ADVICE") by the
Company that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto or (ii) in the case of
the immediately preceding clause (y), the date which is the earlier of (A) the
date on which such business purpose ceases to interfere with the Issuers'
obligations to file or maintain the effectiveness of any such Registration
Statement pursuant to this Agreement or (B) 60 days after the Company notifies
the Holders of such good faith determination. There shall not be more than 60
days of Delay Periods during any 12-month period. The maximum length of the
Applicable Period set forth in Section 2(b) shall be extended by a number of
days equal to the number of days during any Delay Period. Any Delay Period will
not alter the obligations of the Issuers to pay Additional Interest under the
circumstances set forth in Section 4 hereof.
Each Holder or Participating Broker-Dealer, by its acceptance of any
Registrable Note, agrees that during any Delay Period, each Holder or
Participating Broker-Dealer will discontinue disposition of such Notes or
Exchange Notes covered by such Registration Statement or Prospectus or Exchange
Notes to be sold by such Holder or Participating Broker-Dealer, as the case may
be.
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Section 6. REGISTRATION EXPENSES
All fees and expenses incident to the performance of or compliance with
this Agreement by the Issuers (other than any underwriting discounts or
commissions) shall be borne by the Issuers, whether or not the Exchange Offer
Registration Statement or the Shelf Registration is filed or becomes effective
or the Exchange Offer is consummated, including, without limitation, (i) all
registration and filing fees (including, without limitation, reasonable fees and
expenses of compliance with state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of counsel in connection
with Blue Sky qualifications of the Registrable Notes or Exchange Notes and
determination of the eligibility of the Registrable Notes or Exchange Notes for
investment under the laws of such jurisdictions (x) where the holders of
Registrable Notes are located, in the case of an Exchange Offer, or (y) as
provided in Section 5(h) hereof, in the case of a Shelf Registration or in the
case of Exchange Notes to be sold by a Participating Broker-Dealer during the
Applicable Period)), (ii) printing expenses, including, without limitation,
expenses of printing certificates for Registrable Notes or Exchange Notes in a
form eligible for deposit with The Depository Trust Company and of printing
prospectuses if the printing of prospectuses is requested by the managing
underwriter or underwriters, if any, or by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any Registration
Statement or in respect of Exchange Notes to be sold by any Participating
Broker-Dealer during the Applicable Period, as the case may be, (iii) messenger,
telephone and delivery expenses of the Issuers, (iv) fees and disbursements of
counsel for the Issuers and the reasonable fees and disbursements of one special
counsel for all of the sellers of Registrable Notes in connection with the Shelf
Registration not to exceed $20,000 (exclusive of any counsel retained pursuant
to Section 7 hereof) selected by the Holders of a majority in aggregate
principal amount of Notes, Exchange Notes and Private Exchange Notes being
registered and reasonably satisfactory to the Issuers, (v) fees and
disbursements of all independent certified public accountants referred to in
Section 5(m)(iii) hereof (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), (vi) Securities Act liability insurance, if the Issuers desire
such insurance, (vii) fees and expenses of all other Persons retained by any of
the Issuers, (viii) internal expenses of the Issuers (including, without
limitation, all salaries and expenses of officers and employees of the Company
performing legal or accounting duties), (ix) the expense of any annual audit,
(x) the fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange, and the obtaining of a
rating of the securities, in each case, if applicable, (xi) any required fees
and expenses incurred in connection with any filing required to be made with the
NASD and (xii) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, indentures
and any other documents necessary in order to comply with this Agreement.
Notwithstanding the foregoing or anything to the contrary, each Holder shall pay
all underwriting discounts and commissions of any underwriters with respect to
any Registrable Notes sold by or on behalf of it.
Section 7. INDEMNIFICATION
(a) The Issuers, jointly and severally, agree to indemnify and
hold harmless each Holder of Registrable Notes included in a Registration
Statement and each Participating Broker-Dealer selling Exchange Notes during the
Applicable Period, each Person, if any, who controls any such Person within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, the agents, employees, officers and directors of each Holder and each such
Participating Broker-Dealer
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and the agents, partners, members, employees, officers, managers and directors
of any such controlling Person (each, a "PARTICIPANT") from and against any and
all losses, liabilities, claims, damages and expenses whatsoever (including, but
not limited to, reasonable attorneys' fees and any and all reasonable expenses
actually incurred in investigating or defending against any litigation,
commenced or threatened, or any claim whatsoever, and any and all reasonable
amounts paid in settlement of any claim or litigation) (collectively, "LOSSES")
to which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise insofar as such Losses (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement (or any amendment
thereto) or Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary prospectus,
or caused by, arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the case of the Prospectus, in the light of the
circumstances under which they were made, not misleading, PROVIDED that (i) the
foregoing indemnity shall not be available to any Participant insofar as such
Losses (or actions in respect thereof) are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to such Participant furnished to the
Company in writing by or on behalf of such Participant expressly for use
therein, and (ii) the foregoing indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any Participant from whom the
Person asserting such Losses purchased Registrable Notes if (x) it is
established in the related proceeding that such Participant failed to send or
give a copy of the Prospectus (as amended or supplemented if such amendment or
supplement was furnished to such Participant prior to the written confirmation
of such sale) to such Person with or prior to the written confirmation of such
sale, if required by applicable law, and (y) the untrue statement or omission or
alleged untrue statement or omission was corrected in the Prospectus (as amended
or supplemented if amended or supplemented as aforesaid). This indemnity
agreement will be in addition to any liability that the Issuers may otherwise
have, including, but not limited to, liability under this Agreement.
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless each Issuer, each Person, if any, who controls any
Issuer within the meaning of Section 15 of the Securities Act or Section 20(a)
of the Exchange Act, and each of their respective agents, partners, members,
employees, officers and members of the board of directors from and against any
Losses to which they or any of them may become subject under the Securities Act,
the Exchange Act or otherwise insofar as such Losses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (or any
amendment thereto) or Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by, arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the case of the Prospectus, in the
light of the circumstances under which they were made, not misleading, in each
case to the extent, but only to the extent, that any such Loss arises out of or
is based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with information
relating to such Participant furnished in writing to the Company by or on behalf
of such Participant expressly for use therein.
(c) Promptly after receipt by an indemnified party under
subsection 7(a) or 7(b) above of notice of the commencement of any action, suit
or proceeding (collectively, an "ACTION"),
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such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify each party against
whom indemnification is to be sought in writing of the commencement of such
action (but the failure so to notify an indemnifying party shall not relieve
such indemnifying party from any liability that it may have under this Section 7
except to the extent that it has been prejudiced in any material respect by such
failure). In case any such action is brought against any indemnified party, and
it notifies an indemnifying party of the commencement of such action, the
indemnifying party will be entitled to participate in such action, and to the
extent it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense of such action with counsel reasonably satisfactory to such
indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
action, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party or parties unless (i) the employment of such
counsel shall have been authorized in writing by the indemnifying parties in
connection with the defense of such action, (ii) the indemnifying parties shall
not have employed counsel to take charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) the named
parties to such action (including any impleaded parties) include such
indemnified party and the indemnifying party or parties (or such indemnifying
parties have assumed the defense of such action), and such indemnified party or
parties shall have reasonably concluded, after consultation with counsel, that
there may be defenses available to it or them that are different from or
additional to those available to one or all of the indemnifying parties (in
which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events such reasonable fees and expenses of counsel shall be borne by the
indemnifying parties. In no event shall the indemnifying party be liable for the
reasonable fees and expenses of more than one counsel (together with appropriate
local counsel) at any time for all indemnified parties in connection with any
one action or separate but substantially similar or related actions arising in
the same jurisdiction out of the same general allegations or circumstances. Any
such separate firm for the Participants shall be designated in writing by
Participants who sold a majority in interest of Registrable Notes sold by all
such Participants and shall be reasonably acceptable to the Company and any such
separate firm for the Issuers, their affiliates, officers, directors,
representatives, employees and agents and such control Person of such Issuers
shall be designated in writing by such Issuers and shall be reasonably
acceptable to the Holders. An indemnifying party shall not be liable for any
settlement of any claim or action effected without its written consent, which
consent may not be unreasonably withheld. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by paragraph (a) or (b) of this Section 7, then the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 60 days' prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement (x) includes
an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding and (y) 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.
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(d) In order to provide for contribution in circumstances in which
the indemnification provided for in this Section 7 is for any reason held to be
unavailable from the indemnifying party for any Losses referred to therein, or
is insufficient to hold harmless a party indemnified under this Section 7 for
any Losses referred to therein, each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such aggregate
Losses (i) in such proportion as is appropriate to reflect the relative benefits
received by each indemnifying party, on the one hand, and each indemnified
party, on the other hand, from the sale of the Notes to the Initial Purchasers
or the resale of the Registrable Notes by such Holder, as applicable, or (ii) if
such allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of each indemnified party, on the one hand,
and each indemnifying party, on the other hand, in connection with the
statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. The relative benefits received by the
Issuers, on the one hand, and each Participant, on the other hand, shall be
deemed to be in the same proportion as (x) the total proceeds from the sale of
the Notes to the Initial Purchasers (net of discounts and commissions but before
deducting expenses) received by the Issuers are to (y) the total net profit
received by such Participant in connection with the sale of the Registrable
Notes. 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 or such Participant and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission or alleged statement or omission.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 7, (i) in no case shall any Participant be required to contribute
any amount in excess of the amount by which the net profit received by such
Participant in connection with the sale of the Registrable Notes exceeds the
amount of any damages that such Participant has otherwise been required to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission and (ii) 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. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 7, notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation it
or they may have under this Section 7 or otherwise, except to the extent that it
has been prejudiced in any material respect by such failure; PROVIDED, HOWEVER,
that no additional notice shall be required with respect to any action for which
notice has been given under this Section 7 for purposes of indemnification.
Anything in this section to the contrary notwithstanding, no party shall be
liable for contribution with respect to any action or claim settled without its
written consent, PROVIDED, HOWEVER, that such written consent was not
unreasonably withheld.
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Section 8. RULES 144 AND 144A
The Issuers covenant that they will use their commercially reasonable
efforts to file the reports required, if any, to be filed by them under the
Securities Act and the Exchange Act and the rules and regulations adopted by the
Commission thereunder in a timely manner in accordance with the requirements of
the Securities Act and the Exchange Act and, if at any time the Issuers are not
required to file such reports, they will, upon the request of any Holder, or
beneficial owner, of Registrable Notes that are "restricted securities" within
the meaning of Rule 144 and are not saleable pursuant to Rule 144(k), make
available such information necessary to permit sales pursuant to Rule 144A under
the Securities Act. The Issuers further covenant that for so long as any
Registrable Notes remain outstanding they will take such further action as any
Holder of Registrable Notes may reasonably request from time to time to enable
such Holder to sell Registrable Notes without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144(k) and Rule
144A under the Securities Act, as such Rules may be amended from time to time,
or (b) any similar rule or regulation hereafter adopted by the Commission.
Section 9. UNDERWRITTEN REGISTRATIONS
If any of the Registrable Notes covered by any Shelf Registration are
to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority in aggregate principal amount of such Registrable
Notes included in such offering and shall be reasonably acceptable to the
Company.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder if such Holder does not (a) agree to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
complete and execute all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
Section 10. MISCELLANEOUS
(a) NO INCONSISTENT AGREEMENTS. The Issuers have not entered, as
of the date hereof, and shall not, after the date of this Agreement, enter into
any agreement with respect to any of their securities that is inconsistent with
the rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not conflict with and are not inconsistent with, in any
material respect, the rights granted to the holders of any of the Issuers' other
issued and outstanding securities under any such agreements.
(b) ADJUSTMENTS AFFECTING REGISTRABLE NOTES. The Issuers shall
not, directly or indirectly, take any action with respect to the Registrable
Notes as a class that would adversely affect the ability of the Holders of
Registrable Notes to include such Registrable Notes in a registration undertaken
pursuant to this Agreement other than as contemplated in this Agreement.
(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 pursuant to a written
agreement duly signed and delivered by (I) the Com-
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pany (on behalf of all Issuers) and (II) (A) the Holders of not less than a
majority in aggregate principal amount of the then outstanding Registrable Notes
and (B) in circumstances that would adversely affect the Participating
Broker-Dealers, the Participating Broker-Dealers holding not less than a
majority in aggregate principal amount of the Exchange Notes held by all
Participating Broker-Dealers; provided, however, that Section 7 and this Section
10(c) may not be amended, modified or supplemented except pursuant to a written
agreement duly signed and delivered by the Issuers and each Holder and each
Participating Broker-Dealer (including any Person who was a Holder or
Participating Broker-Dealer of Registrable Notes or Exchange Notes, as the case
may be, disposed of pursuant to any Registration Statement) affected by any such
amendment, modification, waiver or supplement. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Registrable Notes whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect, impair, limit or compromise the rights of other
Holders of Registrable Notes may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being sold pursuant to such
Registration Statement.
(d) NOTICES. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of the Registrable Notes or any
Participating Broker-Dealer, at the most current address of such Holder
or Participating Broker-Dealer, as the case may be, set forth on the
records of the registrar under the Indenture.
(ii) if to any Issuer, to it
c/o Ply Gem Industries, Inc.
c/o Caxton-Iseman Capital, Inc.
667 Madison Avenue
New York, NY 10021
Fax: (212) 832-9450
Attention: Chief Financial Officer
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Fax: (212) 757-3990
Attention: John C. Kennedy, Esq.
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(iii) if to the Initial Purchasers, at the address as
follows:
UBS Securities LLC
677 Washington Blvd.
Stamford, Connecticut 06901
Fax number: (203) 719-0680
Attention: High Yield Syndicate Department
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged by the recipient's telecopier machine, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
(e) GUARANTORS. So long as any Registrable Notes remain
outstanding, the Issuers shall cause each Person that becomes a guarantor of the
Notes under the Indenture to execute and deliver a counterpart to this Agreement
which subjects such Person to the provisions of this Agreement as a Guarantor.
Each of the Guarantors agrees to join the Issuers in all of their undertakings
hereunder to effect the Exchange Offer for the Exchange Notes and the filing of
any Shelf Registration required hereunder.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, the Holders and the Participating Broker-Dealers; PROVIDED, HOWEVER,
that this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or
assign holds Registrable Notes.
(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, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
(j) SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder
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of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their best efforts to find and
employ an alternative means to achieve the same or substantially the same result
as that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid, illegal,
void or unenforceable.
(k) SECURITIES HELD BY THE ISSUERS OR THEIR AFFILIATES. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Notes is required hereunder, Registrable Notes held by the Issuers or any of
their affiliates (as such term is defined in Rule 405 under the Securities Act)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
(l) THIRD-PARTY BENEFICIARIES. Holders and beneficial owners of
Registrable Notes and Participating Broker-Dealers are intended third-party
beneficiaries of this Agreement, and this Agreement may be enforced by such
Persons. No other Person is intended to be, or shall be construed as, a
third-party beneficiary of this Agreement.
(m) ENTIRE AGREEMENT. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Issuers on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein
and replaced hereby.
S-1
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
PLY GEM INDUSTRIES, INC.
By: /s/ Lee D. Meyer
---------------------------------------
Name: Lee D. Meyer
Title: President and Chief Executive
Officer
PLY GEM HOLDINGS, INC.
By: /s/ Lee D. Meyer
---------------------------------------
Name: Lee D. Meyer
Title: President and Chief Executive
Officer
GUARANTORS:
GREAT LAKES WINDOW, INC.
KROY BUILDING PRODUCTS, INC.
NAPCO, INC.
NAPCO WINDOW SYSTEMS, INC.
THERMAL-GARD, INC.
VARIFORM, INC.
By: /s/ Lee D. Meyer
---------------------------------------
Name: Lee D. Meyer
Title: Vice President
S-2
UBS SECURITIES LLC
DEUTSCHE BANK SECURITIES INC.
CIBC WORLD MARKETS CORP.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: UBS SECURITIES LLC, as Representative
of the Initial Purchasers
By: /s/ Matthew Stopnik
---------------------------------------
Name: Matthew Stopnik
Title: Executive Director
By: /s/ Kyun Park
---------------------------------------
Name: Kyun Park
Title: Director