Exhibit 4.3
EXECUTION COPY
MICRON NOTES CORPORATION
TO BE MERGED WITH AND INTO
AUTOCAM CORPORATION
10.875% SENIOR SUBORDINATED NOTES DUE 2014
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
June 10, 2004
Goldman, Sachs & Co.,
Citigroup Global Markets Inc.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Micron Notes Corporation, a Michigan corporation (the "COMPANY"), proposes
to issue and sell to the Purchasers (as defined herein) upon the terms set forth
in the Purchase Agreement (as defined herein) its 10.875% Senior Subordinated
Notes due 2014 (the "NOTES").
Pursuant to an Agreement and Plan of Merger dated as of May 1, 2004 (the
"MERGER AGREEMENT"), by and among Titan Holdings, Inc., a Delaware Corporation
("TITAN"), Micron Holdings, Inc., a Delaware Corporation ("MICRON"), and Micron
Merger Corporation, a Delaware Corporation ("MERGER SUB"), Merger Sub will merge
with and into Titan (the "MERGER") with Titan thereby becoming a wholly-owned
subsidiary of Micron.
Concurrently with the consummation of the Merger (i) the Company will
merge with and into Autocam Corporation, a Michigan corporation ("AUTOCAM") and
a wholly-owned subsidiary of Titan, with Autocam as the surviving corporation
(the "ISSUER MERGER"), pursuant to an Agreement and Plan of Merger to be entered
into (the "ISSUER MERGER AGREEMENT"), as a result of which Autocam will succeed
to the obligations of the Company with respect to the Notes under the Indenture
(as defined herein) and under this Exchange and Registration Rights Agreement
and (ii) each of the Guarantors (as defined herein) will execute and deliver a
supplemental indenture to unconditionally guarantee the Notes as to the payment
of principal, premium and interest (including special interest, if any). Upon
the consummation of the Issuer Merger, all references to the "Company" herein
shall refer to Autocam. The Company hereby agrees that it shall cause the
Guarantors to execute and deliver a joinder agreement substantially in the form
of Exhibit A attached hereto upon the consummation of the Issuer Merger, and
this Exchange and Registration Rights Agreement and the Purchase Agreement shall
thereupon constitute the binding obligations of the Guarantors, enforceable
against the Guarantors in accordance with the terms hereof or thereof.
As an inducement to the Purchasers to enter into the Purchase Agreement
and in satisfaction of a condition to the obligations of the Purchasers
thereunder, the Company agrees
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with the Purchasers for the benefit of holders (as defined herein) from time to
time of the Registrable Securities (as defined herein) as follows:
1. Certain Definitions. For purposes of this Exchange and
Registration Rights Agreement, the following terms shall have the following
respective meanings:
"BASE INTEREST" shall mean the interest that would otherwise accrue
on the Securities under the terms thereof and the Indenture, without
giving effect to the provisions of this Exchange and Registration Rights
Agreement.
The term "BROKER-DEALER" shall mean any broker or dealer registered
with the Commission under the Exchange Act.
"CLOSING DATE" shall mean the date on which the Securities are
initially issued.
"COMMISSION" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute for
the particular purpose.
"EFFECTIVE TIME," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective; (ii) a Shelf Registration, shall
mean the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf Registration
Statement otherwise becomes effective; and (iii) a Market Making Shelf
Registration, shall mean the time and date as of which the Commission
declares the Market Making Shelf Registration Statement effective or as of
which the Market Making Shelf Registration Statement otherwise becomes
effective.
"ELECTING HOLDER" shall mean any holder of Registrable Securities
that has returned a completed and signed Notice and Questionnaire to the
Company in accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, or
any successor thereto, as the same shall be amended from time to time.
"EXCHANGE OFFER" shall have the meaning assigned thereto in Section
2(a) hereof.
"EXCHANGE REGISTRATION" shall have the meaning assigned thereto in
Section 3(c) hereof.
"EXCHANGE REGISTRATION STATEMENT" shall have the meaning assigned
thereto in Section 2(a) hereof.
"EXCHANGE SECURITIES" shall have the meaning assigned thereto in
Section 2(a) hereof.
"GUARANTORS" shall have the meaning assigned thereto in the
Indenture.
The term "HOLDER" shall mean each of the Purchasers and other
persons who acquire Registrable Securities from time to time (including
any successors or assigns), in each case for so long as such person owns
any Registrable Securities.
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"INDENTURE" shall mean the Indenture, dated as of June 10, 2004, by
and among the Company and J.P. Morgan Trust Company, National Association,
as trustee, as the same shall be amended from time to time.
"MARKET MAKING SHELF REGISTRATION" shall have the meaning assigned
thereto in Section 2(c) hereof.
"MARKET MAKING SHELF REGISTRATION STATEMENT" shall have the meaning
assigned thereto in Section 2(c) hereof.
"NOTICE AND QUESTIONNAIRE" means a Notice of Registration Statement
and Selling Securityholder Questionnaire substantially in the form of
Exhibit B hereto.
The term "PERSON" shall mean a corporation, association, limited
liability company, partnership, organization, business, individual,
government or political subdivision thereof or governmental agency.
"PURCHASE AGREEMENT" shall mean the Purchase Agreement, dated as of
May 26, 2004, among the Purchasers and the Company relating to the
Securities.
"PURCHASERS" shall mean the Purchasers named in Schedule I to the
Purchase Agreement.
"REGISTRABLE SECURITIES" shall mean the Securities; provided,
however, that a Security shall cease to be a Registrable Security when (i)
in the circumstances contemplated by Section 2(a) hereof, the Security has
been exchanged for an Exchange Security in an Exchange Offer as
contemplated in Section 2(a) hereof (provided that any Exchange Security
that, pursuant to the last two sentences of Section 2(a), is included in a
prospectus for use in connection with resales by broker-dealers shall be
deemed to be a Registrable Security with respect to Sections 5, 6 and 9
until resale of such Registrable Security has been effected within the
period referred to in Section 2(a)); (ii) in the circumstances
contemplated by Section 2(b) hereof, a Shelf Registration Statement
registering such Security under the Securities Act has been declared or
becomes effective and such Security has been sold or otherwise transferred
by the holder thereof pursuant to and in a manner contemplated by such
effective Shelf Registration Statement; (iii) such Security is sold
pursuant to Rule 144 under circumstances in which any legend borne by such
Security relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed by the Company or pursuant to the
Indenture; (iv) such Security is eligible to be sold pursuant to paragraph
(k) of Rule 144; or (v) such Security shall cease to be outstanding.
"REGISTRATION DEFAULT" shall have the meaning assigned thereto in
Section 2(d) hereof.
"REGISTRATION EXPENSES" shall have the meaning assigned thereto in
Section 4 hereof.
"RESALE PERIOD" shall have the meaning assigned thereto in Section
2(a) hereof.
"RESTRICTED HOLDER" shall mean (i) a holder that is an affiliate of
the Company within the meaning of Rule 405, (ii) a holder who acquires
Exchange Securities outside the ordinary course of such holder's business,
(iii) a holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing Exchange
Securities and (iv) a holder that is a broker-dealer, but only with
respect to Exchange
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Securities received by such broker-dealer pursuant to an Exchange Offer in
exchange for Registrable Securities acquired by the broker-dealer directly
from the Company.
"RULE 144," "RULE 405" and "RULE 415" shall mean, in each case, such
rule promulgated under the Securities Act (or any successor provision), as
the same shall be amended from time to time.
"SECONDARY OFFER REGISTRATION STATEMENT" shall mean (i) the Shelf
Registration Statement required to be filed by the Company pursuant to
Section 2(b) hereof and/or (ii) the Market Making Shelf Registration
Statement required to be filed by the Company pursuant to Section 2(c)
hereof, in each case, as applicable. As used herein, references to a
Secondary Offer Registration Statement in the singular shall, if
applicable, be deemed to be in the plural.
"SECURITIES" shall mean, collectively, the 10.875% Senior
Subordinated Notes due 2014 of the Company to be issued and sold to the
Purchasers, and securities issued in exchange therefor or in lieu thereof
pursuant to the Indenture. Following the execution of the Joinder
Agreement, each Security will be entitled to the benefit of the guarantees
provided for in the Indenture (the "GUARANTEES") and, unless the context
otherwise requires, any reference herein to a "SECURITY," an "EXCHANGE
SECURITY" or a "REGISTRABLE SECURITY" shall include a reference to the
related Guarantee.
"SECURITIES ACT" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"SHELF REGISTRATION" shall have the meaning assigned thereto in
Section 2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall have the meaning assigned
thereto in Section 2(b) hereof.
"SPECIAL INTEREST" shall have the meaning assigned thereto in
Section 2(d) hereof.
"TRUST INDENTURE ACT" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a
"SECTION" or "CLAUSE" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company and the
Guarantors agree to file under the Securities Act no later than 120 days
after the Closing Date, a registration statement relating to an offer to
exchange (such registration statement, the "EXCHANGE REGISTRATION
STATEMENT", and such offer, the "EXCHANGE OFFER") any and all of the
Securities for a like aggregate principal amount of debt securities issued
by the Company and guaranteed by each of the Guarantors, which debt
securities and guarantees are substantially identical to the Securities
and the related Guarantees, respectively (and are entitled to the benefits
of an indenture which is substantially identical to the Indenture or is
the Indenture and which has been qualified under the Trust Indenture Act),
except that they
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have been registered pursuant to an effective registration statement under
the Securities Act and do not contain provisions for the additional
interest contemplated in Section 2(d) below (such new debt securities
hereinafter called "EXCHANGE SECURITIES"). The Company and the Guarantors
agree to use their commercially reasonable efforts to cause the Exchange
Registration Statement to become effective under the Securities Act no
later 210 days after the Closing Date. The Exchange Offer will be
registered under the Securities Act on the appropriate form and will
comply with all applicable tender offer rules and regulations under the
Exchange Act. The Company and the Guarantors further agree to use all
commercially reasonable efforts to commence and complete the Exchange
Offer no later than 30 business days, or longer, if required by the
federal securities laws, after such registration statement has become
effective, hold the Exchange Offer open for at least 30 days and exchange
Exchange Securities for all Registrable Securities that have been properly
tendered and not withdrawn on or prior to the expiration of the Exchange
Offer. A holder who wishes to exchange Securities for Exchange Securities
in the Exchange Offer will be required to represent that it is not, and
will not be at the time of the consummation of the Exchange Offer, a
Restricted Holder, provided, however, that if it is an affiliate, it may
participate in the Exchange Offer if it acknowledges that it will comply
with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable. Each broker-dealer will be
required to acknowledge that it will deliver a prospectus in connection
with any resale of the Exchange Securities. The Exchange Offer will be
deemed to have been "completed" only if the debt securities and related
guarantees received by holders other than Restricted Holders in the
Exchange Offer for Registrable Securities are, upon receipt, transferable
by each such holder without restriction under the Securities Act and the
Exchange Act and without material restrictions under the blue sky or
securities laws of a substantial majority of the States of the United
States of America. The Exchange Offer shall be deemed to have been
completed upon the Company having exchanged, pursuant to the Exchange
Offer, Exchange Securities for all Registrable Securities that have been
properly tendered and not withdrawn before the expiration of the Exchange
Offer, which shall be on a date that is at least 30 days following the
commencement of the Exchange Offer. The Company and the Guarantors agree
(x) to include in the Exchange Registration Statement a prospectus for use
in any resales by any holder of Exchange Securities that is a
broker-dealer and (y) to use their commercially reasonable efforts to keep
such Exchange Registration Statement effective for a period (the "RESALE
PERIOD") beginning when Exchange Securities are first issued in the
Exchange Offer and ending upon the earlier of the expiration of the 180th
day after the Exchange Offer has been completed or such time as such
broker-dealers no longer own any Registrable Securities; provided,
however, in either case, so long as the Company requests such information
in writing, the Company receives written notice from a broker-dealer that
such broker-dealer holds Registrable Securities that were acquired for the
account of such broker-dealer as a result of market making or similar
activities. With respect to such Exchange Registration Statement, such
holders shall have the benefit of the rights of indemnification and
contribution set forth in Sections 6(a), (c), (d) and (e) hereof.
(b) If (i) on or prior to the time the Exchange Offer is completed
existing interpretations by the staff of the Commission are changed such
that the debt securities or the related guarantees received by holders
other than Restricted Holders in the Exchange Offer for Registrable
Securities are not or would not be, upon receipt, transferable by each
such holder without restriction under the Securities Act, (ii) for any
other reason the Exchange Offer has not been completed within 240 days
following the Closing Date or (iii) any holder of Securities notifies the
Company prior to the 20th day following the consummation of the Exchange
Offer that, (A) it is prohibited by law or Commission policy from
participating in the Exchange Offer, (B) it may not resell the Exchange
Securities acquired by it in the Exchange Offer to the public without
delivering a prospectus and the prospectus contained in the
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Exchange Offer is not appropriate or available for such resales or (C) it
is a broker-dealer and owns Securities acquired directly from the Company
or an affiliate of the Company, the Company and the Guarantors shall, in
lieu of (or, in the case of clause (iii), after) conducting the Exchange
Offer contemplated by Section 2(a), file under the Securities Act no later
than the later of 30 days after the time such obligation to file arises, a
"shelf" registration statement providing for the registration of, and the
sale on a continuous or delayed basis by the holders of, all of the
Registrable Securities, pursuant to Rule 415 or any similar rule that may
be adopted by the Commission (such filing, the "SHELF REGISTRATION" and
such registration statement, the "SHELF REGISTRATION STATEMENT");
provided, however, that the Shelf Registration Statement shall not be
required to be filed earlier than 120 days after the Closing Date. The
Company and the Guarantors agree to use all commercially reasonable
efforts (x) to cause the Shelf Registration Statement to become or be
declared effective no later than 90 days after the time such obligation to
file the Shelf Registration Statement is required and to keep such Shelf
Registration Statement continuously effective for a period ending on the
earlier of the second anniversary of the Effective Time or such time as
there are no longer any Registrable Securities outstanding, provided,
however, that no holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable Securities
unless such holder is an Electing Holder, and (y) after the Effective Time
of the Shelf Registration Statement, as soon as reasonably practicable
upon the request of any holder of Registrable Securities that is not then
an Electing Holder, to take any action reasonably necessary to enable such
holder to use the prospectus forming a part thereof for resales of
Registrable Securities, including, without limitation, any action
necessary to identify such holder as a selling securityholder in the Shelf
Registration Statement, provided, however, that nothing in this Clause (y)
shall relieve any such holder of the obligation to return a completed and
signed Notice and Questionnaire to the Company in accordance with Section
3(d)(iii) hereof. During the time the Company is required to keep such
Shelf Registration Statement effective as set forth above, the Company and
the Guarantors further agree to supplement or make amendments to the Shelf
Registration Statement, as and when required by the rules, regulations or
instructions applicable to the registration form used by the Company for
such Shelf Registration Statement or by the Securities Act or rules and
regulations thereunder for shelf registration, and the Company agrees to
furnish to each Electing Holder copies of any such supplement or amendment
prior to its being used or promptly following its filing with the
Commission.
Notwithstanding the foregoing, the Company may suspend the
offering and sale under the Shelf Registration Statement for a period or
periods the Board of Directors of the Company reasonably determines to be
necessary, but in any event not to exceed 120 days in each year during
which the Shelf Registration Statement is required to be effective and
usable hereunder (measured from the Effective Time of the Shelf
Registration Statement to successive anniversaries thereof) if (A)(i) the
Board of Directors of the Company determines in good faith that such
action is in the best interests of the Company or (ii) the Shelf
Registration Statement, prospectus or amendment or supplement thereto
contains an untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading, and (B)
the Company notifies Goldman, Sachs & Co. ("GOLDMAN SACHS") within five
days after such Board of Directors makes the relevant determination set
forth in clause (A).
(c) The Company and the Guarantors shall file under the Securities
Act, within five business days of the date that the Exchange Registration
Statement (or in lieu thereof, the Shelf Registration Statement) is filed
with the Commission, a "shelf" registration statement
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(which may be the Exchange Registration Statement or the Shelf
Registration Statement if permitted by the rules and regulations of the
Commission) in a form approved by Goldman Sachs pursuant to Rule 415 under
the Securities Act or any similar rule that may be adopted by the
Commission providing for the registration of, and the sale on a continuous
or delayed basis in secondary transactions by Goldman Sachs of, Securities
(in the event of a Shelf Registration) or Exchange Securities (in the
event of an Exchange Offer) (such filing, the "MARKET MARKING SHELF
REGISTRATION", and such registration statement, the "MARKET MAKING SHELF
REGISTRATION STATEMENT"). The Company and the Guarantors agree to use
their commercially reasonable efforts to cause the Market Making Shelf
Registration Statement to become or be declared effective on or prior to
(i) the date the Exchange Offer is completed pursuant to Section 2(a)
above or (ii) the date the Shelf Registration becomes or is declared
effective pursuant to Section 2(b) above, and to keep such Market Making
Shelf Registration Statement continuously effective for so long as Goldman
Sachs may be required to deliver a prospectus in connection with
transactions in the Securities or the Exchange Securities, as the case may
be. In the event that Goldman Sachs holds Securities at the time an
Exchange Offer is to be conducted under Section 2(a) above, the Company
and the Guarantors agree that the Market Making Shelf Registration shall
provide for the resale by Goldman Sachs of such Securities and shall be
kept continuously effective for so long as Goldman Sachs may be required
to deliver a prospectus in connection with the sale of such Securities.
The Company and the Guarantors further agree to supplement or make
amendments to the Market Making Shelf Registration Statement, as and when
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Market Making Shelf
Registration Statement or by the Securities Act or rules and regulations
thereunder for shelf registrations, and the Company agrees to furnish to
Goldman Sachs copies of any such supplement or amendment prior to its
being used or promptly following its filing with the Commission.
Notwithstanding the foregoing, the Company may suspend the
offering and sale under the Market Making Shelf Registration Statement for
a period or periods the Board of Directors of the Company reasonably
determines to be necessary, but in any event not to exceed 120 days in
each year during which the Market Making Shelf Registration Statement is
required to be effective and usable hereunder (measured from the Effective
Time of the Market Making Shelf Registration Statement to successive
anniversaries thereof) if (A)(i) the Board of Directors of the Company
determines in good faith that such action is in the best interests of the
Company or (ii) the Market Making Shelf Registration Statement, prospectus
or amendment or supplement thereto contains an untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading, and (B) the Company notifies Goldman Sachs
within five days after such Board of Directors makes the relevant
determination set forth in clause (A).
(d) In the event that (i) the Company and the Guarantors have not
filed the Exchange Registration Statement, the Shelf Registration
Statement or the Market Making Shelf Registration Statement on or before
the date on which such registration statement is required to be filed
pursuant to Section 2(a), 2(b) or 2(c) hereof, respectively, or (ii) such
Exchange Registration Statement, Shelf Registration Statement or Market
Making Shelf Registration Statement has not become effective or been
declared effective by the Commission on or before the date on which such
registration statement is required to become or be declared effective
pursuant to Section 2(a), 2(b) or 2(c), respectively, or (iii) the
Exchange Offer has not been completed within 30 business days, or longer
if required by federal securities laws (except where such longer period is
the result of non-compliance with the federal securities laws by the
Company or a Guarantor) after the initial effective
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date of the Exchange Registration Statement relating to the Exchange Offer
(if the Exchange Offer is then required to be made) or (iv) any Exchange
Registration Statement, Shelf Registration Statement or Market Making
Shelf Registration Statement required by Section 2(a), 2(b) or 2(c) hereof
is filed and declared effective but shall thereafter either be withdrawn
by the Company or shall become subject to an effective stop order issued
pursuant to Section 8(d) of the Securities Act suspending the
effectiveness of such registration statement (except as specifically
permitted herein) without being succeeded immediately by an additional
registration statement filed and declared effective (each such event
referred to in clauses (i) through (iv), a "REGISTRATION DEFAULT" and each
period during which a Registration Default has occurred and is continuing,
a "REGISTRATION DEFAULT PERIOD"), then, as liquidated damages for such
Registration Default, subject to the provisions of Section 9(b), special
interest ("SPECIAL INTEREST"), in addition to the Base Interest, shall
accrue at a per annum rate of 0.25% for the first 90 days of the
Registration Default Period, at a per annum rate of 0.50% for the second
90 days of the Registration Default Period, at a per annum rate of 0.75%
for the third 90 days of the Registration Default Period and at a per
annum rate of 1.0% thereafter for the remaining portion of the
Registration Default Period in the aggregate, regardless of the length of
time in which a Registration Default is continuing. Notwithstanding
anything to the contrary set forth herein, (1) upon filing of the Exchange
Registration Statement, the Shelf Registration Statement and/or the Market
Making Shelf Registration Statement, in the case of (i) above, (2) upon
the effectiveness of the Exchange Registration Statement, the Shelf
Registration Statement and/or the Market Making Shelf Registration
Statement, in the case of (ii) above, (3) upon completion of the Exchange
Offer, in the case of (iii) above, or (4) upon the filing of a
post-effective amendment or an additional registration statement that
causes the Exchange Registration Statement, the Shelf Registration
Statement and/or the Market Making Shelf Registration Statement to again
be declared effective or made usable in the case of (iv) above, the
Special Interest payable as a result of such clause (i), (ii), (iii) or
(iv), as applicable, shall cease accruing and the interest rate shall
return to the Base Interest.
(e) The Company shall take, and shall cause the Guarantors, if any,
to take, all actions reasonably necessary or advisable to be taken by it
to ensure that the transactions contemplated herein are effected as so
contemplated, including all actions necessary or desirable to register the
Guarantees, if any, under the registration statement contemplated in
Section 2(a), 2(b) or 2(c) hereof, as applicable.
(f) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference
herein to any post-effective amendment to a registration statement as of
any time shall be deemed to include any document incorporated, or deemed
to be incorporated, therein by reference as of such time.
3. Registration Procedures.
If the Company and the Guarantors file a registration
statement pursuant to Section 2(a), Section 2(b) or Section 2(c), the following
provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer, the Shelf
Registration or the Market Making Shelf Registration, whichever may be
first, the Company shall qualify the Indenture under the Trust Indenture
Act of 1939.
(b) In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions of
the Indenture.
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(c) In connection with the obligations of the Company and the
Guarantors with respect to the registration of Exchange Securities as
contemplated by Section 2(a) (the "Exchange Registration"), if applicable,
the Company and the Guarantors shall, as soon as reasonably practicable
(or as otherwise specified):
(i) prepare and file with the Commission no later than 120
days after the Closing Date, an Exchange Registration Statement on
any form which may be utilized by the Company and which shall permit
the Exchange Offer and resales of Exchange Securities by
broker-dealers during the Resale Period to be effected as
contemplated by Section 2(a), and use all commercially reasonable
efforts to cause such Exchange Registration Statement to become
effective no later than 210 days after the Closing Date;
(ii) prepare and file with the Commission such amendments and
supplements to such Exchange Registration Statement and the
prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Exchange Registration Statement
for the periods and purposes contemplated in Section 2(a) hereof and
as may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such
Exchange Registration Statement, and as soon as reasonably
practicable provide each broker-dealer holding Exchange Securities
that has identified itself to the Company with such number of copies
of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder, as such
broker-dealer reasonably may request prior to the expiration of the
Resale Period, for use in connection with resales of Exchange
Securities;
(iii) promptly notify each broker-dealer that has requested or
to the Company's knowledge received copies of the prospectus
included in such Exchange Registration Statement, and confirm such
advice in writing, (A) when any prospectus amendment or supplement
or post-effective amendment has been filed, and, with respect to
such Exchange Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any comments
by the Commission and by the blue sky or securities commissioner or
regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such Exchange
Registration Statement or prospectus or for additional information
(provided that such comments themselves need not be provided to any
such broker-dealer), (C) of the issuance by the Commission of any
stop order suspending the effectiveness of such Exchange
Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the representations
and warranties of the Company contemplated by Section 5 cease to be
true and correct in all material respects, (E) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Exchange Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose, or (F) at any time during the Resale Period when a
prospectus is required to be delivered under the Securities Act,
that such Exchange Registration Statement, prospectus, prospectus
amendment or supplement or post-effective amendment does not conform
in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or contains an untrue
statement of a material fact or omits to
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state any material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the
circumstances then existing;
(iv) in the event that the Company would be required,
pursuant to Section 3(c)(iii)(F) above, to notify any broker-dealers
holding Exchange Securities, without delay prepare and furnish to
each such holder a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to
purchasers of such Exchange Securities during the Resale Period,
such prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder and shall not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light
of the circumstances then existing;
(v) use their commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such
Exchange Registration Statement or any post-effective amendment
thereto at the earliest practicable date;
(vi) use their commercially reasonable efforts to (A)
register or qualify the Exchange Securities under the securities
laws or blue sky laws of such jurisdictions as are contemplated by
Section 2(a) no later than the commencement of the Exchange Offer,
(B) keep such registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers, sales and
dealings therein in such jurisdictions until the expiration of the
Resale Period and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each broker-dealer
holding Exchange Securities to consummate the disposition thereof in
such jurisdictions; provided, however, that none of the Company or
the Guarantors shall be required for any such purpose to (1) qualify
as a foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this
Section 3(c)(vi), (2) consent to general service of process in any
such jurisdiction, (3) subject themselves to taxation in any
jurisdiction where it is not subject to taxation prior to any such
action or (4) make any changes to its organizational documents or
any agreement between it and its stockholders;
(vii)use their commercially reasonable efforts to obtain the
consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required by the
Company or any Guarantor to effect the Exchange Registration, the
Exchange Offer and the offering and sale of Exchange Securities by
broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time; and
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as
soon as practicable but no later than eighteen months after the
effective date of such Exchange Registration Statement, an earning
statement of the Company and its subsidiaries complying with Section
11(a) of the Securities Act (including, at the option of the
Company, Rule 158 thereunder).
(d) In connection with the obligations of the Company and the
Guarantors with respect to the Shelf Registration and the Market Making
Shelf Registration, as applicable, the Company and the Guarantors shall
use their commercially reasonable efforts to cause the
10
applicable Secondary Offer Registration Statement to permit the
disposition of Registrable Securities by the holders thereof, in the case
of the Shelf Registration, and of Securities or Exchange Securities by
Goldman Sachs, in the case of a Market Making Shelf Registration (subject,
in each case, to the second paragraph of Section 2(b) or 2(c) hereof, as
applicable), in accordance with the intended method or methods of
disposition thereof provided for in the applicable Secondary Offer
Registration Statement. In connection therewith, the Company and the
Guarantors shall, as soon as reasonably practicable (or as otherwise
specified):
(i) (A) prepare and file with the Commission within the time
periods specified in Section 2(b) or Section 2(c) hereof, as
applicable, a Secondary Offer Registration Statement on any form
which may be utilized by the Company and which shall (x) register
all of the Registrable Securities, in the case of a Shelf
Registration, and the Securities and Exchange Securities, in the
case of a Market Making Shelf Registration, for resale by the
holders thereof in accordance with such method or methods of
disposition as may be specified by such of the holders as, from time
to time, may be Electing Holders, in the case of a Shelf
Registration, or Goldman Sachs, in the case of a Market Making Shelf
Registration, and (y) be, in the case of a Market Making Shelf
Registration, in the form approved by Goldman Sachs, and (B) use all
commercially reasonable efforts to cause such Secondary Offer
Registration Statement to become effective within the time periods
specified in Section 2(b) or Section 2(c) hereof, as applicable;
(ii) not less than 30 calendar days prior to the Effective
Time of the Shelf Registration Statement, mail the Notice and
Questionnaire to the holders of Registrable Securities; no holder
shall be entitled to be named as a selling securityholder in the
Shelf Registration Statement as of the Effective Time, and no holder
shall be entitled to use the prospectus forming a part thereof for
resales of Registrable Securities at any time, unless such holder
has returned a completed and signed Notice and Questionnaire to the
Company by the deadline for response set forth therein; provided,
however, holders of Registrable Securities shall have at least 28
calendar days from the date on which the Notice and Questionnaire is
first mailed to such holders to return a completed and signed Notice
and Questionnaire to the Company;
(iii)after the Effective Time of the Shelf Registration
Statement, upon the written request of any holder of Registrable
Securities that is not then an Electing Holder, promptly send a
Notice and Questionnaire to such holder; provided that the Company
shall not be required to take any action to name such holder as a
selling securityholder in the Shelf Registration Statement or to
enable such holder to use the prospectus forming a part thereof for
resales of Registrable Securities until such time as is reasonably
practicable after such holder has returned a completed and signed
Notice and Questionnaire to the Company;
(iv) (A) prepare and file with the Commission such amendments
and supplements to the Secondary Offer Registration Statement and
the prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Secondary Offer Registration
Statement for the period specified in Section 2(b) or Section 2(c)
hereof, as applicable, and as may be required by the applicable
rules and regulations of the Commission and the instructions
applicable to the form of such Secondary Offer Registration
Statement, and in the case of an amendment to or supplement of the
Market Making Shelf Registration Statement, each in a form
11
approved by Goldman Sachs, and (B) furnish to the Electing Holders,
in the case of a Shelf Registration, copies of any such supplement
or amendment simultaneously with or prior to its being used or filed
with the Commission (for the avoidance of doubt, any such supplement
or amendment filed by the Commission's Electronic Data Gathering,
Analysis, and Retrieval System shall be considered simultaneously
furnished to the Electing Holders);
(v) comply with the provisions of the Securities Act with
respect to the disposition of all of the Registrable Securities,
Securities or Exchange Securities, as applicable, covered by such
Secondary Offer Registration Statement in accordance with the
intended methods of disposition provided for therein by the Electing
Holders, in the case of a Shelf Registration, or Goldman Sachs, in
the case of a Market Making Shelf Registration Statement;
(vi) provide (A) with respect to a Shelf Registration, the
Electing Holders, (B) with respect to a Market Making Shelf
Registration, Goldman Sachs and its counsel, and (C) in either case,
the underwriters (which term, for purposes of this Exchange and
Registration Rights Agreement, shall include a person deemed to be
an underwriter within the meaning of Section 2(a)(11) of the
Securities Act), if any, thereof, the sales or placement agent, if
any, therefor, and one counsel (and any local counsel) for such
underwriters or agent, the opportunity to participate in the
preparation of such Secondary Offer Registration Statement, each
prospectus included therein or filed with the Commission and each
amendment or supplement thereto;
(vii) for a reasonable period prior to the filing of such
Secondary Offer Registration Statement, and throughout the period
specified in Section 2(b) or Section 2(c) hereof, as applicable,
make available at reasonable times at the Company's principal place
of business or such other reasonable place for inspection by the
persons referred to in Section 3(d)(vi) who shall certify to the
Company that they have a current intention to sell the Registrable
Securities pursuant to the Shelf Registration, or the Securities or
Exchange Securities pursuant to the Market Making Shelf
Registration, as applicable, and that they are not direct or
indirect competitors of the Company or the Guarantors, such
financial and other information and books and records of the
Company, and cause the officers, employees, counsel and independent
certified public accountants of the Company to respond to such
inquiries, as shall be reasonably necessary, in the judgment of the
respective counsel referred to in such Section 3(d)(vi), to conduct
a reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that each such party shall be
required to maintain in confidence and not to disclose to any other
person any information or records reasonably designated by the
Company as being confidential, until such time as (A) such
information becomes a matter of public record (whether by virtue of
its inclusion in such Secondary Offer Registration Statement or
otherwise), or (B) such person shall be required so to disclose such
information pursuant to a subpoena or order of any court or other
governmental agency or body having jurisdiction over the matter
(subject to the requirements of such order, and only after such
person shall have given the Company prompt prior written notice of
such requirement), or (C) such information is required to be set
forth in such Secondary Offer Registration Statement or the
prospectus included therein or in an amendment to such Secondary
Offer Registration Statement or an amendment or supplement to such
prospectus in order that such Secondary Offer Registration
Statement, prospectus, amendment or supplement, as the case may be,
complies
12
with applicable requirements of the federal securities laws and the
rules and regulations of the Commission and does not contain an
untrue statement of a material fact or omit to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing; provided, further, that if any such information is
identified by the Company or the Guarantors as being confidential or
proprietary, prior to being given such information, each person
receiving such information shall take such actions as are reasonably
necessary to protect the confidentiality of such information,
including if reasonably necessary, executing a customary
confidentiality agreement;
(viii) promptly notify each of the Electing Holders or Goldman
Sachs, as applicable, any sales or placement agent therefor and any
underwriter thereof (which notification may be made through any
managing underwriter that is a representative of such underwriter
for such purpose) and confirm such advice in writing, (A) when such
Secondary Offer Registration Statement or the prospectus included
therein or any prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to such Secondary Offer
Registration Statement or any post-effective amendment, when the
same has become effective, (B) of any comments by the Commission and
by the blue sky or securities commissioner or regulator of any state
with respect thereto or any request by the Commission for amendments
or supplements to such Secondary Offer Registration Statement or
prospectus or for additional information (provided, that such
comments themselves need not be provided), (C) of the issuance by
the Commission of any stop order suspending the effectiveness of
such Secondary Offer Registration Statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any time
the representations and warranties of the Company contemplated by
Section 3(d)(xvii) or Section 5 cease to be true and correct in all
material respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Registrable Securities, the Securities or Exchange Securities,
as applicable, for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (F) if at any
time when a prospectus is required to be delivered under the
Securities Act, that such Secondary Offer Registration Statement,
prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances then existing (for the avoidance of doubt, the
obligation to comply with this clause (F) shall apply in respect of
an Electing Holder only after such Electing Holder has delivered a
Notice and Questionnaire to the Company);
(ix) use their commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such
Secondary Offer Registration Statement or any post-effective
amendment thereto at the earliest practicable date;
(x) if requested by any managing underwriter or
underwriters, any placement or sales agent, any Electing Holder or
Goldman Sachs, as soon as reasonably practicable incorporate in a
prospectus supplement or post-effective amendment such information
as is required by the applicable rules and regulations of the
Commission and as such managing underwriter or underwriters, such
agent, such
13
Electing Holder or Goldman Sachs specifies should be included
therein relating to the terms of the sale of such Registrable
Securities, the Securities or Exchange Securities, as applicable,
including information with respect to the principal amount thereof
being sold by such Electing Holder, Goldman Sachs, or such agent or
to any underwriters, the name and description of such Electing
Holder, a description of Goldman Sachs, such agent or underwriter,
the offering price of such Registrable Securities, Securities or
Exchange Securities, as applicable, and any discount, commission or
other compensation payable in respect thereof and the purchase price
being paid therefor by such underwriters and with respect to any
other terms of the offering of the Registrable Securities,
Securities or Exchange Securities, as applicable, to be sold by such
Electing Holder, Goldman Sachs or such agent or to such
underwriters, as applicable; and make all required filings of such
prospectus supplement or post-effective amendment promptly after
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment;
(xi) furnish to Goldman Sachs, each Electing Holder, each
placement or sales agent, if any, therefor, each underwriter, if
any, thereof and the respective counsel referred to in Section
3(d)(vi) a copy (or, in the case of an Electing Holder, a conformed
copy) of such Secondary Offer Registration Statement, each such
amendment and supplement thereto (in each case including all
exhibits thereto and documents incorporated by reference therein (in
the case of an Electing Holder of Registrable Securities, upon
request)) and such number of copies of such Secondary Offer
Registration Statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested
by Goldman Sachs, such Electing Holder, agent or underwriter, as the
case may be) and of the prospectus included in such Secondary Offer
Registration Statement (including each preliminary prospectus and
any summary prospectus), in conformity in all material respects with
the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder, provided that any Secondary Offer Registration Statement
filed by EDGAR shall be considered furnished to such parties and
such other documents, as Goldman Sachs, such Electing Holder, agent,
if any, and underwriter, if any, may reasonably request in order to
facilitate the offering and disposition of the Registrable
Securities owned by such Electing Holder, the Securities or Exchange
Securities owned by Goldman Sachs, and the Registrable Securities,
Securities, or Exchange Securities offered or sold by such agent or
underwritten by such underwriter, as applicable, and to permit
Goldman Sachs, such Electing Holder, agent and underwriter to
satisfy the prospectus delivery requirements of the Securities Act;
and the Company hereby consents to the use of such prospectus
(including such preliminary and summary prospectus) and any
amendment or supplement thereto by Goldman Sachs, each such Electing
Holder and by any such agent and underwriter, in each case in the
form most recently provided to such person by the Company (subject,
in each case, to the second paragraph of Section 2(c) hereof), in
connection with the offering and sale of the Registrable Securities,
Securities or Exchange Securities covered by the prospectus
(including such preliminary and summary prospectus) or any
supplement or amendment thereto;
(xii) use commercially reasonable efforts to (A) register or
qualify the Registrable Securities, Securities or Exchange
Securities, as applicable, to be included in such Secondary Offer
Registration Statement under such securities laws or blue sky laws
of such jurisdictions as any Electing Holder, Goldman Sachs and each
placement or sales agent, if any, therefor and each underwriter, if
any, thereof
14
shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit
the continuance of offers, sales and dealings therein in such
jurisdictions during the period the Shelf Registration is required
to remain effective under Section 2(b) above or the period the
Market Making Shelf Registration is required to remain effective
under Section 2(c) above, as applicable, and for so long as may be
necessary to enable Goldman Sachs, any such Electing Holder, agent
or underwriter to complete its distribution of Registrable
Securities, Securities or Exchange Securities, as applicable,
pursuant to such Secondary Offer Registration Statement and (C) take
any and all other actions as may be reasonably necessary or
advisable to enable each such Electing Holder, and Goldman Sachs, as
applicable, such agent, if any, and underwriter, if any, to
consummate the disposition in such jurisdictions of such Registrable
Securities, Securities or Exchange Securities; provided, however,
that none of the Company or the Guarantors shall be required for any
such purpose to (1) qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to qualify
but for the requirements of this Section 3(d)(xii), (2) consent to
general service of process in any such jurisdiction, (3) subject
themselves to taxation in any jurisdiction where it is not subject
to taxation prior to any such action or (4) make any changes to its
organizational documents or any agreement between it and its
stockholders;
(xiii) use their commercially reasonable efforts to obtain the
consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required by the
Company or any Guarantor or, with respect to the Registrable
Securities, Securities or Exchange Securities, as applicable, which
may be required of the Company to effect the Shelf Registration or
the Market Making Shelf Registration, or the offering or sale in
connection therewith or to enable the selling holder or holders or
Goldman Sachs to offer, or to consummate the disposition of, their
Registrable Securities, Securities or Exchange Securities, as
applicable;
(xiv) unless any Registrable Securities shall be in book-entry
only form, cooperate with the Electing Holders or Goldman Sachs and
the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities, Securities or Exchange Securities, as applicable, to be
sold, which certificates, if so required by any securities exchange
upon which any Registrable Securities, Securities or Exchange
Securities, as applicable, are listed, shall be penned, lithographed
or engraved, or produced by any combination of such methods, on
steel engraved borders, and which certificates shall not bear any
restrictive legends; and, in the case of an underwritten offering,
enable such Registrable Securities, Securities or Exchange
Securities, as applicable, to be in such denominations and
registered in such names as the managing underwriters may request at
least two business days prior to any sale of the Registrable
Securities, Securities or Exchange Securities, as applicable;
(xv) provide a CUSIP number for all Registrable Securities,
Securities or Exchange Securities, as applicable, not later than the
applicable Effective Time;
(xvi) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts" underwriting
agreements or similar agreements, as appropriate, including
customary provisions relating to indemnification and contribution,
and take such other actions in connection therewith as, (A) in the
case of a Shelf Registration, any Electing Holders aggregating at
least 25% in aggregate principal amount of the Registrable
Securities at the time outstanding or (B) in the
15
case of a Market Making Shelf Registration, Goldman Sachs, shall
request in order to expedite or facilitate the disposition of such
Registrable Securities, Securities or Exchange Securities, as
applicable; provided that the Company shall not be required to enter
into any such agreements more than twice and may delay entering into
any such agreement until the consummation of any underwritten public
offering in which the Company shall be engaged provided that such
delay is reasonable;
(xvii) whether or not an agreement of the type referred to in
Section 3(d)(xvi) hereof is entered into and whether or not any
portion of the offering contemplated by the Secondary Offer
Registration is an underwritten offering or is made through a
placement or sales agent or any other entity, (A) make such
representations and warranties to the Electing Holders, Goldman
Sachs and the placement or sales agent, if any, therefor and the
underwriters, if any, thereof in form, substance and scope as are
customarily made in connection with an offering of debt securities
pursuant to any appropriate agreement or to a registration statement
filed on the form applicable to the Shelf Registration or the Market
Making Shelf Registration, as applicable; (B) obtain an opinion of
counsel to the Company (which may be inside counsel to the Company)
in customary form and covering such matters, of the type customarily
covered by such an opinion, as the managing underwriters, if any,
and in the case of a Shelf Registration, as any Electing Holders of
at least 25% in aggregate principal amount of the Registrable
Securities at the time outstanding or, in the case of a Market
Making Shelf Registration, as Goldman Sachs may reasonably request,
addressed to such Electing Holder or Electing Holders, Goldman Sachs
and the placement or sales agent, if any, therefor and the
underwriters, if any, thereof and dated the effective date of such
Secondary Offer Registration Statement (and if such Secondary Offer
Registration Statement contemplates an underwritten offering of a
part or all of the Registrable Securities, Securities or Exchange
Securities, as applicable, dated the date of the closing under the
underwriting agreement relating thereto) (it being agreed that the
matters to be covered by such opinion shall include the due
incorporation and good standing of the Company and the good standing
of the Guarantors, if incorporated in the United States; the
qualification of the Company and the Guarantors to transact business
as foreign corporations in any jurisdiction where such qualification
is material; the due authorization, execution and delivery of the
relevant agreement of the type referred to in Section 3(d)(xvi)
hereof; the due authorization, execution and issuance, and the
validity and enforceability, of the Registrable Securities,
Securities or Exchange Securities, as applicable; the absence of
material legal or governmental proceedings involving the Company;
the filing of the Shelf Registration Statement or the Market Making
Shelf Registration Statement and the offering or exchange of the
Securities or Exchange Securities thereunder, as applicable, will
not cause a breach by the Company or any of its subsidiaries of, or
a default under, material agreements binding upon the Company or any
subsidiary of the Company; the absence of governmental approvals
required to be obtained in connection with the Shelf Registration or
Market Making Shelf Registration, as applicable, the offering and
sale of the Registrable Securities, Securities or Exchange
Securities, as applicable, this Exchange and Registration Rights
Agreement or any agreement of the type referred to in Section
3(d)(xvi) hereof, except such approvals as may be required under
state securities or blue sky laws; the material compliance as to
form of such Secondary Offer Registration Statement and any
documents incorporated by reference therein and of the Indenture
with the requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder,
respectively; and, as of the date of the opinion and of the
Secondary Offer
16
Registration Statement or most recent post-effective amendment
thereto, as the case may be, the absence from such Secondary Offer
Registration Statement and the prospectus included therein, as then
amended or supplemented, and from the documents incorporated by
reference therein (in each case other than the financial statements,
notes or schedules and other financial data contained therein) of an
untrue statement of a material fact or the omission to state therein
a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading (in the case of such documents, in the light of the
circumstances existing at the time that such documents were filed
with the Commission under the Exchange Act)); (C) if requested by
counsel to the Electing Holders, obtain a "cold comfort" letter or
letters from the independent certified public accountants of the
Company addressed to the selling Electing Holders, Goldman Sachs,
the placement or sales agent, if any, therefor or the underwriters,
if any, thereof, dated (i) the effective date of such Secondary
Offer Registration Statement and (ii) the effective date of any
prospectus supplement to the prospectus included in such Secondary
Offer Registration Statement or post-effective amendment to such
Secondary Offer Registration Statement which includes unaudited or
audited financial statements as of a date or for a period subsequent
to that of the latest such statements included in such prospectus
(and, if such Secondary Offer Registration Statement contemplates an
underwritten offering pursuant to any prospectus supplement to the
prospectus included in such Secondary Offer Registration Statement
or post-effective amendment to such Secondary Offer Registration
Statement which includes unaudited or audited financial statements
as of a date or for a period subsequent to that of the latest such
statements included in such prospectus, dated the date of the
closing under the underwriting agreement relating thereto), such
letter or letters to be in customary form and covering such matters
of the type customarily covered by letters of such type; (D) deliver
such documents and certificates, including officers' certificates,
as may be reasonably requested, in the case of a Shelf Registration,
by any Electing Holders of at least 25% in aggregate principal
amount of the Registrable Securities at the time outstanding or, in
the case of a Market Making Shelf Registration, by Goldman Sachs,
and, in either case, the placement or sales agent, if any, therefor
and the managing underwriters, if any, thereof, dated the effective
date of such Secondary Offer Registration Statement (and if such
Secondary Offer Registration Statement contemplates an underwritten
offering of a part or all of the Registrable Securities, Securities
or Exchange Securities, as applicable, dated the date of the closing
under the underwriting agreement relating thereto), to evidence the
accuracy of the representations and warranties made pursuant to
clause (A) above or those contained in Section 5(a) hereof and the
compliance with or satisfaction of any agreements or conditions
contained in the underwriting agreement or other agreement entered
into by the Company or the Guarantors, if any; and (E) undertake
such obligations relating to expense reimbursement, indemnification
and contribution as are provided in Section 6 hereof;
(xviii) notify in writing each holder of Registrable
Securities affected thereby and Goldman Sachs of any proposal by the
Company to amend or waive any provision of this Exchange and
Registration Rights Agreement pursuant to Section 9(h) hereof and of
any amendment or waiver effected pursuant thereto, each of which
notices shall contain the text of the amendment or waiver proposed
or effected, as the case may be;
17
(xix) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities, Securities
or Exchange 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 "Conduct Rules") of the
National Association of Securities Dealers, Inc. ("NASD") or any
successor thereto, as amended from time to time) thereof, whether as
a holder of such Registrable Securities, Securities or Exchange
Securities or as an underwriter, a placement or sales agent or a
broker or dealer in respect thereof, or otherwise, assist such
broker-dealer in complying with the requirements of such Conduct
Rules, including by (A) if such Conduct Rules shall so require,
engaging a "qualified independent underwriter" (as defined in such
Conduct Rules) to participate in the preparation of the Secondary
Offer Registration Statement relating to such Registrable
Securities, Securities or Exchange Securities, as applicable, to
exercise usual standards of due diligence in respect thereto and, if
any portion of the offering contemplated by such Secondary Offer
Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of such
Registrable Securities, Securities or Exchange Securities, (B)
indemnifying any such qualified independent underwriter to the
extent of the indemnification of underwriters provided in Section 6
hereof (or to such other customary extent as may be requested by
such underwriter), and (C) providing such information to such
broker-dealer as may be required in order for such broker-dealer to
comply with the requirements of the Conduct Rules;
(xx) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as
soon as practicable but in any event not later than eighteen months
after the effective date of such Secondary Offer Registration
Statement, an earnings statement of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act (including, at
the option of the Company, Rule 158 thereunder); and
(xxi) so long as Goldman Sachs may be required to deliver a
prospectus in connection with the offer and sale of Securities or
Exchange Securities in secondary transactions and if not otherwise
available on the Commission's Electronic Data Gathering, Analysis,
and Retrieval System or similar system, to furnish to Goldman Sachs
copies of all reports or other communications (financial or other)
furnished to stockholders of the Company and deliver to Goldman
Sachs (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or
any national securities exchange or inter-dealer automated quotation
system on which the Securities or Exchange Securities or any other
securities of the Company are listed or quoted and the documents
specified in Section 4.03 of the Indenture, as in effect on the
Closing Date; and (ii) such additional information concerning the
business and financial condition of the Company and its subsidiaries
as Goldman Sachs may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the
accounts of the Company are consolidated in reports furnished to its
stockholders generally or to the Commission) provided, that if any
such information is identified by the Company or the Guarantors as
being confidential or proprietary, prior to being given such
information, Goldman Sachs shall take such actions as are reasonably
necessary to protect the confidentiality of such information,
including if reasonably necessary, executing a customary
confidentiality agreement.
18
(e) In the event that the Company would be required, pursuant to
Section 3(d)(viii)(F) above, to notify the Electing Holders, Goldman
Sachs, the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, the Company shall without delay prepare and
furnish to each such person a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Securities, Securities or Exchange Securities, as applicable,
such prospectus shall conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and shall not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing (for the
avoidance of doubt, any such prospectus filed via EDGAR shall be deemed
furnished to such persons). Each Electing Holder and Goldman Sachs agrees
that upon receipt of any notice from the Company pursuant to Section
3(d)(viii)(F) hereof, such Electing Holder and Goldman Sachs shall
forthwith discontinue the disposition of Registrable Securities,
Securities or Exchange Securities, as applicable, pursuant to the
Secondary Offer Registration Statement applicable to such Registrable
Securities, Securities or Exchange Securities, as applicable, until such
Electing Holder or Goldman Sachs, as applicable, shall have received
copies of such amended or supplemented prospectus, and if so directed by
the Company, such Electing Holder or Goldman Sachs shall deliver to the
Company (at the Company's expense) all copies, other than permanent file
copies, then in such Electing Holder's or Goldman Sachs' possession of the
prospectus covering such Registrable Securities, Securities or Exchange
Securities, as applicable, at the time of receipt of such notice.
(f) In addition to the information required to be provided in a
Notice and Questionnaire by each broker-dealer in connection with the
Exchange Offer pursuant to Section 2(a) or by each Electing Holder as to
which any Shelf Registration pursuant to Section 2(b) is being effected or
to be provided by Goldman Sachs in connection with the Market Making Shelf
Registration pursuant to Section 2(c), the Company may require such
Electing Holder or Goldman Sachs, as applicable, to furnish to the Company
such additional information regarding such Electing Holder or Goldman
Sachs, as applicable, and such Electing Holder's or Goldman Sachs', as
applicable, intended method of distribution of the applicable Registrable
Securities, Securities or Exchange Securities, as the Company may from
time to time reasonably request in writing, but only to the extent that
such information is required or necessary in order to comply with the
Securities Act. Each such Electing Holder and Goldman Sachs agrees to
notify the Company as promptly as practicable of any inaccuracy or change
in information previously furnished by such Electing Holder or Goldman
Sachs, as the case may be, to the Company or of the occurrence of any
event in either case as a result of which any prospectus relating to such
Shelf Registration or Market Making Shelf Registration, as applicable,
contains or would contain an untrue statement of a material fact regarding
such Electing Holder or Goldman Sachs or such Electing Holder's or Goldman
Sachs' intended method of disposition of the applicable Registrable
Securities, Securities or Exchange Securities or omits to state any
material fact regarding such Electing Holder or Goldman Sachs or such
Electing Holder's or Goldman Sachs' intended method of disposition of such
Registrable Securities, Securities or Exchange Securities, required to be
stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing, and promptly to furnish to
the Company any additional information required to correct and update any
previously furnished information or required so that such prospectus shall
not contain, with respect to such Electing Holder or Goldman Sachs or the
disposition of such Registrable Securities, Securities or Exchange
Securities, an untrue statement of a material fact or omit to state a
material fact required to be stated
19
therein or necessary to make the statements therein not misleading in
light of the circumstances then existing.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly
all expenses incident to the Company's performance of or compliance with this
Exchange and Registration Rights Agreement, including (a) all Commission and any
NASD registration, filing and review fees and expenses including fees and
disbursements of counsel for the placement or sales agent or underwriters in
connection with such NASD registration, filing and review, (b) all fees and
expenses in connection with the qualification of the Registrable Securities,
Securities or Exchange Securities, as applicable, for offering and sale under
the State securities and blue sky laws referred to in Section 3(c)(vi) or
3(d)(xii) hereof and determination of their eligibility for investment under the
laws of such jurisdictions as any managing underwriters or the Electing Holders
or Goldman Sachs may designate, including any fees and disbursements of counsel
for the Electing Holders or Goldman Sachs or underwriters in connection with
such qualification and determination, (c) all expenses relating to the
preparation, printing, production, distribution and reproduction of each
registration statement required to be filed hereunder, each prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the expenses of preparing the Securities or
Exchange Securities for delivery and the expenses of printing or producing any
underwriting agreements, agreements among underwriters, selling agreements and
blue sky or legal investment memoranda and all other documents in connection
with the offering, sale or delivery of Securities or Exchange Securities to be
disposed of (including certificates representing the Securities or Exchange
Securities), (d) messenger, telephone and delivery expenses relating to the
offering, sale or delivery of Securities or Exchange Securities and the
preparation of documents referred in clause (c) above, (e) fees and expenses of
the Trustee under the Indenture, any agent of the Trustee and any counsel for
the Trustee and of any collateral agent or custodian, (f) internal expenses
(including all salaries and expenses of the Company's officers and employees
performing legal or accounting duties), (g) fees, disbursements and expenses of
counsel and independent certified public accountants of the Company (including
the expenses of any opinions or "cold comfort" letters required by or incident
to such performance and compliance), (h) fees, disbursements and expenses of any
"qualified independent underwriter" engaged pursuant to Section 3(d)(xix)
hereof, (i) fees, disbursements and expenses of one counsel for the Electing
Holders retained in connection with a Shelf Registration, as selected by the
Electing Holders of at least a majority in aggregate principal amount of the
Registrable Securities held by such Electing Holders, and one counsel for
Goldman Sachs retained in connection with a Market Making Shelf Registration, as
selected by Goldman Sachs, which counsel shall be reasonably satisfactory to the
Company, (j) any fees charged by securities rating services for rating the
Securities or Exchange Securities, and (k) fees, expenses and disbursements of
any other persons, including special experts, retained by the Company in
connection with such registration (collectively, the "Registration Expenses").
To the extent that any Registration Expenses are incurred, assumed or paid by
any holder of Registrable Securities, Goldman Sachs or any placement or sales
agent therefor or underwriter thereof, the Company shall reimburse such person
for the full amount of the Registration Expenses so incurred, assumed or paid
promptly after receipt of a request therefor. Notwithstanding the foregoing, the
holders of the Registrable Securities being registered, or Goldman Sachs, as
applicable, shall pay all agency fees and commissions and underwriting discounts
and commissions attributable to the sale of the applicable Registrable
Securities, Securities or Exchange Securities and the fees and disbursements of
any counsel or other advisors or experts retained by such holders (severally or
jointly), other than the counsel and experts specifically referred to above.
20
5. Representations and Warranties.
Each of the Company and the Guarantors represents and warrants
to, and agrees with, each Purchaser and each of the holders from time to time of
Registrable Securities that:
(a) Each registration statement covering Registrable Securities,
Securities or Exchange Securities and each prospectus (including any
preliminary or summary prospectus) contained therein or furnished pursuant
to Section 3(c) or Section 3(d) hereof and any further amendments or
supplements to any such registration statement or prospectus, when it
becomes effective or is filed with the Commission, as the case may be,
and, in the case of an underwritten offering of Registrable Securities,
Securities or Exchange Securities, at the time of the closing under the
underwriting agreement relating thereto, will conform in all material
respects to the requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder and 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 not misleading; and at all times subsequent to the
applicable Effective Time when a prospectus would be required to be
delivered under the Securities Act, other than (A) from (i) such time as a
notice has been given to holders of Registrable Securities or Goldman
Sachs, as applicable, pursuant to Section 3(d)(viii)(F) or Section
3(c)(iii)(F) hereof until (ii) such time as the Company furnishes an
amended or supplemented prospectus pursuant to Section 3(e) or Section
3(c)(iv) hereof, or (B) during any suspension of offering and sale
pursuant to the second paragraph of Section 2(b) or 2(c) hereof, each such
registration statement, and each prospectus (including any summary
prospectus) contained therein or furnished pursuant to Section 3(c) or
Section 3(d) hereof, as then amended or supplemented, will conform in all
material respects to the requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder
and 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 not misleading in the light of the circumstances
then existing; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by a
holder of Registrable Securities or Goldman Sachs, as applicable,
expressly for use therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became effective
or are or were filed with the Commission, as the case may be, will conform
or conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of such
documents will contain or contained an untrue statement of a material fact
or will omit or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by a holder of
Registrable Securities or Goldman Sachs, as applicable, expressly for use
therein.
(c) The compliance by the Company with all of the provisions of this
Exchange and Registration Rights Agreement and the consummation of the
transactions herein contemplated (i) will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any subsidiary of the
Company is a party or by which the Company or any subsidiary of the
Company is bound or to which any of the property or assets of the Company
or any subsidiary of the Company is subject, (ii) nor will such action
result in any violation of the provisions of the certificate of
21
incorporation, as amended, the by-laws or similar organizational documents
of the Company or any of the Guarantors or (iii) any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any subsidiary of the Company or any of
their properties except in the cases of clauses (i) and (iii) as would
not, singly or in the aggregate, have a Material Adverse Effect (as
defined in the Purchase Agreement); and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the consummation by
the Company and each of the Guarantors of the transactions contemplated by
this Exchange and Registration Rights Agreement, except in connection with
the registration under the Securities Act of the Registrable Securities,
Securities or Exchange Securities, qualification of the Indenture under
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under State securities
or blue sky laws in connection with the offering and distribution of the
Registrable Securities, Securities or Exchange Securities.
(d) This Exchange and Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and the Guarantors.
6. Indemnification.
(a) Indemnification by the Company and each of the Guarantors. The
Company and each of the Guarantors, jointly and severally, will indemnify
and hold harmless each of the holders of Registrable Securities included
in an Exchange Registration Statement and Goldman Sachs, as holder of
Securities or Exchange Securities included in a Market Making Shelf
Registration Statement, and each of the Electing Holders of Registrable
Securities included in a Shelf Registration Statement and each person who
participates as a placement or sales agent or as an underwriter in any
offering or sale of such Registrable Securities, Securities or Exchange
Securities against any losses, claims, damages or liabilities, joint or
several, to which Goldman Sachs or such holder, Electing Holder, agent or
underwriter may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Exchange
Registration Statement or Secondary Offer Registration Statement, as the
case may be, under which such Registrable Securities, Securities or
Exchange Securities were registered under the Securities Act, or any
preliminary, final or summary prospectus contained therein or furnished by
the Company to Goldman Sachs, any such holder, Electing Holder, agent or
underwriter, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse Goldman Sachs, such
holder, such Electing Holder, such agent and such underwriter for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that none of the Company or the Guarantors
shall be liable to any such person in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, or preliminary, final or
summary prospectus, or amendment or supplement thereto, in reliance upon
and in conformity with written information furnished to the Company by
such person expressly for use therein; provided, further that the
foregoing indemnity agreement with respect to any preliminary prospectus
or prospectus shall not inure to the benefit of any broker-dealer, Goldman
Sachs or any Electing Holders from whom the person asserting any such
losses, claims, damages or liabilities purchased the Securities, or any
person controlling such broker-dealer, Goldman Sachs or an Electing
22
Holder, if it has been established that a copy of the prospectus (or the
prospectus as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such broker-dealer, Goldman Sachs or Electing Holder to
such person, if required by law so to have been delivered and if the
prospectus (or prospectus as so amended or supplemented) would have cured
the defect giving rise to such losses, claims, damages or liabilities and,
except for such failure, would have constituted the sole defense of the
claim asserted by such person, unless such failure was a result of the
Company's failure to comply with its obligations, including prompt
delivery of the prospectus (or prospectus as so amended or supplemented)
to the broker-dealers, Goldman Sachs or Electing Holders.
(b) Indemnification by the Holders and any Agents and Underwriters
in connection with any Shelf Registration. The Company may require, as a
condition to including any Registrable Securities in any Shelf
Registration Statement filed pursuant to Section 2(b) hereof or to
entering into any underwriting agreement with respect thereto, that the
Company shall have received an undertaking reasonably satisfactory to it
from the Electing Holder of such Registrable Securities and from each
underwriter named in any such underwriting agreement, severally and not
jointly, to (i) indemnify and hold harmless the Company and each of the
Guarantors and their respective officers and directors, and all other
holders of Registrable Securities, against any losses, claims, damages or
liabilities to which the Company, any of the Guarantors or such other
holders of Registrable Securities may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in such
registration statement, or any preliminary, final or summary prospectus
contained therein or furnished by the Company to any such Electing Holder,
agent or underwriter, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such Electing Holder
or underwriter expressly for use therein including, as applicable, the
information provided by such Electing Holder in its Notice and
Questionnaire, and (ii) reimburse the Company and each of the Guarantors
for any legal or other expenses reasonably incurred by the Company and
each of the Guarantors in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however,
that no such Electing Holder shall be required to undertake liability to
any person under this Section 6(b) for any amounts in excess of the dollar
amount of the proceeds to be received by such Electing Holder from the
sale of such Electing Holder's Registrable Securities pursuant to such
registration.
(c) Indemnification by Goldman Sachs and any Agents and Underwriters
in Connection with the Market Making Shelf Registration. The Company, may
require, as a condition to including any Securities or Exchange Securities
in the Market Making Shelf Registration Statement filed pursuant to
Section 2(c) hereof or to entering into any underwriting agreement with
respect thereto, that the Company shall have received an undertaking
reasonably satisfactory to it from each underwriter named in any such
underwriting agreement, severally and not jointly, to, and Goldman Sachs,
shall and hereby agrees to, (i) indemnify and hold harmless the Company
and the Guarantors, against any losses, claims, damages or liabilities to
which the Company or the Guarantors may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged
23
untrue statement of a material fact contained in the Market Making Shelf
Registration Statement, or any preliminary, final or summary prospectus
contained therein or furnished by the Company to Goldman Sachs or to any
such agent or underwriter, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company (A) by
Goldman Sachs, in the case of any indemnification hereunder by Goldman
Sachs, expressly for use therein, or (B) by such underwriter, in the case
of any indemnification hereunder by such underwriter, expressly for use
therein, and (ii) reimburse the Company and the Guarantors for any legal
or other expenses reasonably incurred by the Company and the Guarantors in
connection with investigating or defending any such action or claim as
such expenses are incurred but only to the extent such expenses are
incurred (A) in connection with an action or claim against Goldman Sachs
pursuant to clause (i)(A) above, in the case of any reimbursement
hereunder by Goldman Sachs, or (B) in connection with an action or claim
against such underwriter pursuant to clause (i)(B) above, in the case of
any reimbursement hereunder by such underwriter; provided, however, that,
in the case of Securities held by Goldman Sachs at the time of the
Exchange Offer, Goldman Sachs shall not be required to undertake liability
to any person under this Section 6(c) for any amounts in excess of the
dollar amount of the proceeds to be received by Goldman Sachs from the
sale of such Securities by Goldman Sachs pursuant to the Market Making
Shelf Registration.
(d) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a), (b) or (c) above of written notice of the
commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party pursuant to
the indemnification provisions of or contemplated by this Section 6,
notify such indemnifying party in writing of the commencement of such
action; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party
otherwise than under the indemnification provisions of or contemplated by
Section 6(a), 6(b) or 6(c) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying
party of the commencement thereof, such indemnifying party shall be
entitled to participate therein and, to the extent that it shall 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, such indemnifying party shall
not be liable to such indemnified party for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising
out of such action or claim 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.
24
(e) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a), 6(b) or 6(c) hereof are unavailable to or
insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the
statements or omissions which 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 such indemnifying party
and indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or by such indemnified
party, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 6(e) were determined by pro rata
allocation (even if the holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in this Section 6(e). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, or
liabilities (or actions in respect thereof) referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred
by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section
6(e), neither any holder nor, in the case of a Market Making Shelf
Registration relating to the sale by Goldman Sachs of Securities held by
it at the time of the Exchange Offer, Goldman Sachs shall be required to
contribute any amount in excess of the amount by which the dollar amount
of the proceeds received by such holder from the sale of any Registrable
Securities or Goldman Sachs from the sale of any such Securities (after
deducting any fees, discounts and commissions applicable thereto) exceeds
the amount of any damages which such holder or Goldman Sachs, as
applicable, have otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission, and no
underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities,
Securities or Exchange Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages
which such underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The holders', Goldman Sachs' and any underwriters' obligations in this
Section 6(e) to contribute shall be several in proportion to the principal
amount of Registrable Securities registered or underwritten, as the case
may be, by them and not joint.
(f) The obligations of the Company and each of the Guarantors under
this Section 6 shall be in addition to any liability which the Company or
any of the Guarantors may otherwise have and shall extend, upon the same
terms and conditions, to each officer, director and partner of Goldman
Sachs, each holder, agent and underwriter and each person, if any, who
controls Goldman Sachs, any holder, agent or underwriter within the
meaning of the Securities Act; and the obligations of Goldman Sachs, the
holders and any agents or underwriters contemplated by this Section 6
shall be in addition to any liability which Goldman Sachs, the respective
holder, agent or underwriter may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company or
any of the Guarantors (including any person who, with his consent, is
named in
25
any registration statement as about to become a director of the Company or
any of the Guarantors) and to each person, if any, who controls the
Company or any of the Guarantors within the meaning of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an
underwritten offering, the managing underwriter or underwriters thereof
shall be designated by the Company, provided that such designated managing
underwriter or underwriters is or are reasonably acceptable to the
Electing Holders holding at least a majority in aggregate principal amount
of the Registrable Securities to be included in such offering.
(b) Participation by Holders. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may
participate in any underwritten offering hereunder unless such holder (i)
agrees to sell such holder's Registrable Securities on the basis 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.
8. Rule 144.
The Company covenants to the holders of Registrable Securities
and Goldman Sachs that to the extent it shall be required to do so under the
Exchange Act, the Company shall timely file the reports required to be filed by
it under the Exchange Act or the Securities Act (including the reports under
Sections 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of
Rule 144 adopted by the Commission under the Securities Act) and the rules and
regulations adopted by the Commission thereunder, and shall take such further
action as any holder of Registrable Securities or Goldman Sachs may reasonably
request, all to the extent required from time to time to enable such holder to
sell Registrable Securities, or Goldman Sachs, to sell Securities or Exchange
Securities without registration under the Securities Act within the limitations
of the exemption provided by Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar or successor rule or regulation
hereafter adopted by the Commission. Upon the request of any holder of
Registrable Securities or Goldman Sachs in connection with that holder's or
Goldman Sachs' sale pursuant to Rule 144, the Company shall deliver to such
holder or Goldman Sachs a written statement as to whether it has complied with
such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Securities, Securities or
Exchange Securities or any other securities which would be inconsistent
with the terms contained in this Exchange and Registration Rights
Agreement.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if the Company fails to perform any of
its obligations hereunder and that the Purchasers and the holders from
time to time of the Registrable Securities may be irreparably harmed by
any such failure, and accordingly agree that the Purchasers and such
holders, in addition to any other remedy to which they may be entitled at
law or in equity, shall be entitled to compel specific performance of the
obligations of the Company under this
26
Exchange and Registration Rights Agreement in accordance with the terms
and conditions of this Exchange and Registration Rights Agreement, in any
court of the United States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to
have been duly given when delivered by hand, if delivered personally or by
courier, or three days after being deposited in first-class mail
(registered or certified mail, postage prepaid, return receipt requested)
or the next day if by air courier with guaranteed overnight delivery, as
follows: If to the Company, to it at 4070 East Paris Avenue Southeast,
Kentwood, Michigan 49512, Attention: Chief Financial Officer, if to
Goldman Sachs, to Goldman, Sachs & Co., 85 Broad Street, New York, New
York 10004, Attention: Registration Department, and if to a holder, to the
address of such holder set forth in the security register or other records
of the Company, or to such other address as the Company, Goldman Sachs or
any such holder may have furnished to the other in writing in accordance
herewith, except that notices of change of address shall be effective only
upon receipt.
(d) Parties in Interest. All the terms and provisions of this
Exchange and Registration Rights Agreement shall be binding upon, shall
inure to the benefit of and shall be enforceable by the parties hereto and
the holders from time to time of the Registrable Securities and the
respective successors and assigns of the parties hereto and such holders.
In the event that any transferee of any holder of Registrable Securities
shall acquire Registrable Securities, in any manner, whether by gift,
bequest, purchase, operation of law or otherwise, such transferee shall,
without any further writing or action of any kind, be deemed a beneficiary
hereof for all purposes and such Registrable Securities shall be held
subject to all of the terms of this Exchange and Registration Rights
Agreement, and by taking and holding such Registrable Securities such
transferee shall be entitled to receive the benefits of, and be
conclusively deemed to have agreed to be bound by all of the applicable
terms and provisions of this Exchange and Registration Rights Agreement.
If the Company shall so request, any such successor, assign or transferee
shall agree in writing to acquire and hold the Registrable Securities
subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Exchange and Registration Rights Agreement or made pursuant hereto shall
remain in full force and effect regardless of any investigation (or
statement as to the results thereof) made by or on behalf of Goldman Sachs
or any holder of Registrable Securities, any director, officer or partner
of Goldman Sachs or such holder, any agent or underwriter or any director,
officer or partner thereof, or any controlling person of any of the
foregoing, and shall survive delivery of and payment for the Securities
pursuant to the Purchase Agreement and the transfer and registration of
Securities by such holder or Goldman Sachs and the consummation of an
Exchange Offer.
Anything herein to the contrary notwithstanding, the indemnity
agreement of the Company and the Guarantors in Section 6(a) hereof, the
representations and warranties in Section 5(a) and Section 5(b) hereof and any
representation or warranty as to the accuracy of the Secondary Offer
Registration Statement (or any preliminary, final or summary prospectus
contained therein) contained in any certificate furnished by the Company
pursuant to Section 3(d)(xvii) hereof, insofar as they may constitute a basis
for indemnification for liabilities (other than payment by the Company and the
Guarantors of expenses incurred or paid in the successful defense of any action,
suit or proceeding) arising under the Securities Act, shall not extend to the
extent of any interest therein of a controlling person or partner of Goldman
Sachs who is a director, officer or controlling person of the Company when the
Exchange Registration
27
Statement or the Secondary Offer Registration Statement has become effective,
except in each case to the extent that an interest of such character shall have
been determined by a court of appropriate jurisdiction as not against public
policy as expressed in the Securities Act. Unless in the opinion of counsel for
the Company the matter has been settled by controlling precedent, the Company
will, if a claim for such indemnification is asserted, submit to a court of
appropriate jurisdiction the question whether such interest is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(f) GOVERNING LAW. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted
for convenience only, do not constitute a part of this Exchange and
Registration Rights Agreement and shall not affect in any way the meaning
or interpretation of this Exchange and Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and Registration
Rights Agreement and the other writings referred to herein (including the
Indenture and the form of Securities) or delivered pursuant hereto which
form a part hereof contain the entire understanding of the parties with
respect to its subject matter. This Exchange and Registration Rights
Agreement supersedes all prior agreements and understandings between the
parties with respect to its subject matter. This Exchange and Registration
Rights Agreement may be amended and the observance of any term of this
Exchange and Registration Rights Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively)
only by a written instrument duly executed by the Company and the holders
of at least a majority in aggregate principal amount of the Registrable
Securities at the time outstanding and Goldman Sachs; provided, however,
that any such amendment or waiver affecting solely provisions of this
Exchange and Registration Rights Agreement relating to the Market Making
Registration may be effected by a written instrument duly executed solely
by the Company and Goldman Sachs. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any
amendment or waiver effected pursuant to this Section 9(h), whether or not
any notice, writing or marking indicating such amendment or waiver appears
on such Registrable Securities or is delivered to such holder.
(i) Inspection. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights
Agreement and a complete list of the names and addresses of all the
holders of Registrable Securities and the address of Goldman Sachs shall
be made available upon reasonable notice in writing for inspection and
copying on any business day by Goldman Sachs or any holder of Registrable
Securities for proper purposes only (which shall include any purpose
related to the rights of the holders of Registrable Securities under the
Securities, the Indenture and this Exchange and Registration Rights
Agreement) at the offices of the Company at the address thereof set forth
in Section 9(c) above or at the office of the Trustee under the Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all
such respective counterparts shall together constitute one and the same
instrument.
28
If the foregoing is in accordance with your understanding, please sign and
return to us five counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Purchasers, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Purchasers, the Guarantors
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Purchasers is pursuant to the authority set forth in a form of
Agreement among Purchasers, the form of which shall be submitted to the Company
for examination upon request, but without warranty on your part as to the
authority of the signers thereof.
Very truly yours,
Micron Notes Corporation
By: /s/ Lauren Cabral
___________________________
Name: Lauren Cabral
Title: Assistant Secretary
S-1
Accepted as of the date hereof:
Goldman, Sachs & Co.
By: /s/ Goldman, Sachs & Co.
___________________________
(Goldman, Sachs & Co.)
Citigroup Global Markets Inc.
By: /s/ Ashok Nayyar
___________________________
Name: Ashok Nayyar
Title: Managing Director
S-2
EXHIBIT A
FORM OF JOINDER AGREEMENT
A-1
EXHIBIT B
MICRON NOTES CORPORATION
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE] *
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the Micron Notes Corporation (the
"COMPANY") 10.875% Senior Subordinated Notes due 2014 (the "SECURITIES") are
held.
The Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the
enclosed materials as soon as possible as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by [Deadline For Response]. Please forward a copy of the
enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact the Company at 4070
East Paris Avenue Southeast, Kentwood, Michigan 49512, Attention: Chief
Financial Officer, Telephone: (616) 698-0707.
B-1
MICRON NOTES CORPORATION
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement (the
"EXCHANGE AND REGISTRATION RIGHTS AGREEMENT") between Micron Notes Corporation
(the "COMPANY") and the Purchasers named therein. Pursuant to the Exchange and
Registration Rights Agreement, the Company has filed with the United States
Securities and Exchange Commission (the "COMMISSION") a registration statement
on Form __ (the "SHELF REGISTRATION STATEMENT") for the registration and resale
under Rule 415 of the Securities Act of 1933, as amended (the "SECURITIES ACT"),
of the Company's 10.875% Senior Subordinated Notes due 2014 (the "SECURITIES").
A copy of the Exchange and Registration Rights Agreement is attached hereto. All
capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled
to have the Registrable Securities beneficially owned by it included in the
Shelf Registration Statement. In order to have Registrable Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("NOTICE AND QUESTIONNAIRE") must be
completed, executed and delivered to the Company's counsel at the address set
forth herein for receipt ON OR BEFORE ____________________. Beneficial owners of
Registrable Securities who do not complete, execute and return this Notice and
Questionnaire by such date (i) will not be named as selling securityholders in
the Shelf Registration Statement and (ii) may not use the Prospectus forming a
part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
The term "REGISTRABLE SECURITIES" is defined in the Exchange and Registration
Rights Agreement.
B-2
ELECTION
The undersigned holder (the "SELLING SECURITYHOLDER") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Exchange and Registration Rights
Agreement, including, without limitation, Sections 3(e), 3(f) and 6 of the
Exchange and Registration Rights Agreement, as if the undersigned Selling
Securityholder were an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Exhibit C to the Exchange and
Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
B-3
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Registrable Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not the
same as (b) above) Through Which Registrable Securities Listed in
Item (3) below are Held:
(2) Address for Notices to Selling Securityholder:
________________________________________________________
________________________________________________________
________________________________________________________
Telephone: ________________________________________
Fax: ________________________________________
Contact Person: ________________________________________
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned:______
CUSIP No(s). of such Registrable Securities:_______________________
(b) Principal amount of Securities other than Registrable Securities
beneficially owned:
____________________________________________________________________
CUSIP No(s). of such other Securities: _____________________________
(c) Principal amount of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration Statement:__________
CUSIP No(s). of such Registrable Securities to be included in the
Shelf Registration Statement:______________________________________
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any
other securities of the Company, other than the Securities listed
above in Item (3).
State any exceptions here:
B-4
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor
any of its affiliates, officers, directors or principal equity
holders (5% or more) has held any position or office or has had any
other material relationship with the Company (or its predecessors or
affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in
Item (3) only as follows (if at all): Such Registrable Securities
may be sold from time to time directly by the undersigned Selling
Securityholder or, alternatively, through underwriters,
broker-dealers or agents. Such Registrable Securities may be sold in
one or more transactions at fixed prices, at prevailing market
prices at the time of sale, at varying prices determined at the time
of sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve crosses or block transactions) (i)
on any national securities exchange or quotation service on which
the Registered Securities may be listed or quoted at the time of
sale, (ii) in the over-the-counter market, (iii) in transactions
otherwise than on such exchanges or services or in the
over-the-counter market, or (iv) through the writing of options. In
connection with sales of the Registrable Securities or otherwise,
the Selling Securityholder may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the
Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable
Securities short and deliver Registrable Securities to close out
such short positions, or loan or pledge Registrable Securities to
broker-dealers that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M or any successor provision under the Exchange Act.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
B-5
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement and
related prospectus, the Selling Securityholder agrees to promptly notify the
Company of any inaccuracies or changes in the information provided herein which
may occur subsequent to the date hereof at any time while the Shelf Registration
Statement remains in effect. All notices hereunder and pursuant to the Exchange
and Registration Rights Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
Micron Notes Corporation
4070 East Paris Avenue Southeast
Kentwood, Michigan 49512
Attention: Chief Financial Officer
(ii) With a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004-1980
Attention: Jeffrey Bagner
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above. This
Agreement shall be governed and construed in accordance with the laws of the
State of New York.
B-6
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated:__________________________
____________________________________________________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable Securities)
By:_______________________________________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [______________] TO THE COMPANY'S COUNSEL AT:
Micron Notes Corporation
4070 East Paris Avenue Southeast
Kentwood, Michigan 49512
Attention: Secretary
B-7
EXHIBIT C
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
[Name of Trustee]
Micron Notes Corporation
c/o [Name of Trustee]
[Address of Trustee]
Attention: Trust Officer
Re: Micron Notes Corporation (the "COMPANY")
10.875% Senior Subordinated Notes due 2014
Dear Sirs:
Please be advised that ___ has transferred $ aggregate principal amount of the
above-referenced Notes pursuant to an effective Registration Statement on Form
S-4 (File No. 333- ) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "SELLING HOLDER" in the Prospectus
dated _____________ or in supplements thereto, and that the aggregate principal
amount of the Notes transferred are the Notes listed in such Prospectus opposite
such owner's name.
Dated:
Very truly yours,
__________________________________
(Name)
By:_______________________________________
(Authorized Signature)
C-1