EXECUTION COPY
TITAN INTERNATIONAL, INC.
$200,000,000
8% Senior Unsecured Notes due 2012
unconditionally guaranteed as to the
payment of principal, premium,
if any, and interest by
the guarantors signatory hereto
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EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
December 28, 2006
Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Titan International, Inc., an Illinois corporation (the "Company"),
proposes to issue and sell to the Initial Purchaser (as defined herein) upon the
terms set forth in the Purchase Agreement (as defined herein) its $200,000,000
aggregate principal amount of 8% Senior Unsecured Notes due 2012 (the "Senior
Unsecured Notes"), which are guaranteed by the Guarantors (as defined herein).
As an inducement to the Initial Purchaser to enter into the Purchase Agreement
and in satisfaction of a condition to the obligations of the Initial Purchaser
thereunder, the Company and each of the Guarantors, jointly and severally, agree
with the Initial Purchaser for the benefit of holders (as defined herein) from
time to time of the Registrable Securities (as defined herein) as follows:
1. Certain Definitions. For purposes of this Exchange and
Registration Rights Agreement, the following terms shall have the following
respective meanings:
"Base Interest" shall mean the interest that would otherwise accrue
on the Securities under the terms thereof and the Indenture, without
giving effect to the provisions of this Agreement.
The term "broker-dealer" shall mean any broker or dealer registered
with the Commission under the Exchange Act.
"Closing Date" shall mean the date on which the Securities are
initially issued.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute for
the particular purpose.
"Effective Time," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall
mean the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf Registration
Statement otherwise becomes effective.
"Electing Holder" shall mean any holder of Registrable Securities
that has returned a completed and signed Notice and Questionnaire to the
Company in accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or
any successor thereto, as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
"Guarantor" shall have the meaning assigned thereto in the
Indenture.
The term "holder" shall mean the Initial Purchaser and each of the
other persons who acquire Registrable Securities from time to time
(including any successors or assigns), in each case for so long as such
person owns any Registrable Securities.
"Indenture" shall mean the Indenture, dated as of December 28, 2006,
among the Company, the Guarantors and U.S. Bank National Association, as
Trustee, as the same shall be amended from time to time.
"Initial Purchaser" shall mean Goldman, Sachs & Co.
"Notice and Questionnaire" means a Notice of Registration Statement
and Selling Securityholder Questionnaire substantially in the form of
Exhibit A hereto.
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The term "person" shall mean a corporation, association,
partnership, organization, business, individual, government or political
subdivision thereof or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of
December 19, 2006, among the Initial Purchaser, the Guarantors and the
Company relating to the Securities.
"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
180-day 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(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section
2(a) hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of
the Company within the meaning of Rule 405, (ii) a holder who acquires
Exchange Securities outside the ordinary course of such holder's business,
(iii) a holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing Exchange
Securities and (iv) a holder that is a broker-dealer, but only with
respect to Exchange Securities received by such broker-dealer pursuant to
an Exchange Offer in exchange for Registrable Securities acquired by the
broker-dealer directly from the Company.
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"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such
rule promulgated under the Securities Act (or any successor provision), as
the same shall be amended from time to time.
"Securities" shall mean, collectively, the Senior Unsecured Notes of
the Company to be issued and sold to the Initial Purchaser, and securities
issued in exchange therefor or in lieu thereof pursuant to the Indenture.
Each Security is entitled to the benefit of the guarantee 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
Guarantees.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned
thereto in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to
use commercially reasonable efforts to file under the Securities Act 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 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 a
trust indenture which is substantially identical to the Indenture or is the
Indenture and which has been qualified under the Trust Indenture Act), except
that they have been registered pursuant to an effective registration statement
under the Securities Act and do not contain provisions for the additional
interest contemplated in Section 2(c) below (such new debt securities
hereinafter called "Exchange Securities"). The
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Company agrees to use commercially reasonable efforts to cause the Exchange
Registration Statement to become effective under the Securities Act. The
Exchange Offer will be registered under the Securities Act on the appropriate
form and will comply with all applicable tender offer rules and regulations
under the Exchange Act. The Company further agrees to use commercially
reasonable efforts to complete the Exchange Offer no later than 60 days after
its commencement, hold the Exchange Offer open for at least 20 days and exchange
Exchange Securities for all Registrable Securities that have been properly
tendered and not withdrawn on or prior to the expiration of the Exchange Offer.
The Exchange Offer will be deemed to have been "completed" only if the debt
securities 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
earlier to occur of (i) the Company having exchanged the Exchange Securities for
all outstanding Registrable Securities pursuant to the Exchange Offer and (ii)
the Company having exchanged, pursuant to the Exchange Offer, Exchange
Securities for all Registrable Securities that have been properly tendered and
not withdrawn before the expiration of the Exchange Offer, which shall be on a
date that is at least 20 days following the commencement of the Exchange Offer.
The Company agrees (x) to include in the Exchange Registration Statement a
prospectus for use in any resales by any holder of Exchange Securities that is a
broker-dealer and (y) to keep such Exchange Registration Statement effective for
a period (the "Resale Period") beginning when Exchange Securities are first
issued in the Exchange Offer and ending upon the earlier of the expiration of
the 180th day after the Exchange Offer has been completed or such time as such
broker-dealers no longer own any Registrable Securities. With respect to such
Exchange Registration Statement, such holders shall have the benefit of the
rights of indemnification and contribution set forth in Sections 6(a), (c), (d)
and (e) hereof.
(b) If (i) on or prior to the time the Exchange Offer is completed
existing Commission interpretations are changed such that the debt securities or
the related guarantees received by holders other than Restricted Holders in the
Exchange Offer for Registrable Securities are not or would not be, upon receipt,
transferable by each such holder without restriction under the Securities Act,
(ii) the Exchange Offer has not been completed within 270 days following the
Closing Date or (iii) the Exchange Offer is not available to any holder of the
Securities, the Company shall, in lieu of (or, in the case of clause (iii), in
addition to) conducting the Exchange Offer contemplated by Section 2(a), use
commercially reasonable efforts to file under the Securities Act a "shelf"
registration statement providing for the registration of, and the sale on a
continuous or delayed basis by the holders of, all of the Registrable
Securities, pursuant to Rule 415 or any similar rule that may be adopted by the
Commission (such filing, the "Shelf Registration" and such registration
statement, the "Shelf Registration Statement"). The Company agrees to use
commercially reasonable efforts (x) to cause the Shelf Registration Statement to
become or be declared effective no later than 180 days after such Shelf
Registration Statement is filed and to keep such Shelf Registration Statement
continuously effective for a period ending on the earlier of the second
anniversary of the
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Closing Date 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, promptly upon the written 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 that the Company shall not be required to
file more than one post-effective amendment to the Shelf Registration Statement
during any 90-day period; provided further, however, that nothing in this Clause
(y) shall relieve any such holder of the obligation to return a completed and
signed Notice and Questionnaire to the Company in accordance with Section
3(d)(iii) hereof. The Company further agrees to supplement or make amendments to
the Shelf Registration Statement, as and when required by the rules, regulations
or instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or rules and regulations
thereunder for shelf registration, and the Company agrees to furnish to each
Electing Holder copies of any such supplement or amendment prior to its being
used or promptly following its filing with the Commission.
(c) In the event that (i) the Exchange Offer is not completed (or,
if required pursuant to Section 2(b), the Shelf Registration Statement is not
declared effective) on or before the date that is 270 days after the Closing
Date or (ii) any Exchange Registration Statement or Shelf Registration Statement
required by Section 2(a) or 2(b) hereof is filed and declared effective but
shall thereafter 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), in each case for a period in excess of 45 days
(whether or not consecutive) in any 12-month period (each such event referred to
in clauses (i) and (ii), 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 1.00% thereafter for the remaining portion of the Registration
Default Period.
(d) The Company shall take, and shall cause the Guarantors to take,
all actions 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 under the registration
statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
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(e) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference herein to
any post-effective amendment to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time.
3. Registration Procedures.
If the Company files a registration statement pursuant to Section
2(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the
Shelf Registration, as the case may be, the Company shall qualify the
Indenture under the Trust Indenture Act of 1939.
(b) In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions of
the Indenture.
(c) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Company shall:
(i) prepare and file with the Commission 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 commercially
reasonable efforts to cause such Exchange Registration Statement to
become effective as soon as practicable thereafter;
(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 promptly provide each
broker-dealer that has notified the Company in writing that it holds
Exchange Securities 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
in writing prior to the expiration of the Resale Period, for use in
connection with resales of Exchange Securities;
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(iii) promptly notify each broker-dealer that has requested in
writing or received copies of the prospectus included in such
registration statement, and confirm such advice in writing, (A) when
such Exchange Registration Statement or the prospectus included
therein or any prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to such Exchange
Registration Statement or any post-effective amendment, when the
same has become effective, (B) of any comments by the Commission and
by the blue sky or securities commissioner or regulator of any state
with respect thereto or any request by the Commission for amendments
or supplements to such Exchange Registration Statement or prospectus
or for additional information, (C) of the 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 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(e)(iii)(F) above, to notify any broker-dealers that
have notified the Company in writing that they hold Exchange
Securities, without delay prepare and furnish to each such holder a
reasonable number of copies of a prospectus supplemented or amended
so that, as thereafter delivered to purchasers of such Exchange
Securities during the Resale Period, such prospectus shall conform
in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and shall not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(v) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of such Exchange Registration Statement
or any post-effective amendment thereto at the earliest practicable
date;
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(vi) use its best efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of
such jurisdictions as are contemplated by Section 2(a) no later than
the commencement of the Exchange Offer, (B) keep such registrations
or qualifications in effect and comply with such laws so as to
permit the continuance of offers, sales and dealings therein in such
jurisdictions until the expiration of the Resale Period and (C) take
any and all other actions as may be reasonably necessary or
advisable to enable each broker-dealer holding Exchange Securities
to consummate the disposition thereof in such jurisdictions;
provided, however, that neither the Company nor 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 or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders;
(vii) use its best efforts to obtain the consent or approval
of each governmental agency or authority, whether federal, state or
local, which may be required to effect the Exchange Registration,
the Exchange Offer and the offering and sale of Exchange Securities
by broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time;
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as
soon as practicable but no later than eighteen months after the
effective date of such Exchange Registration Statement, an 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 Company's obligations with respect to the
Shelf Registration, if applicable, the Company shall:
(i) prepare and file with the Commission a Shelf Registration
Statement on any form which may be utilized by the Company and which
shall register all of the Registrable Securities for resale by the
holders thereof in accordance with such method or methods of
disposition as may be specified by such of the holders as, from time
to time, may be Electing Holders and use commercially reasonable
efforts to cause such Shelf Registration Statement to become
effective as soon as practicable but in any case within the time
periods specified in Section 2(b);
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(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 holder has returned a
completed and signed Notice and Questionnaire to the Company;
(iv) prepare and file with the Commission such amendments and
supplements to such Shelf Registration Statement and the prospectus
included therein as may be necessary to effect and maintain the
effectiveness of such Shelf Registration Statement for the period
specified in Section 2(b) hereof and as may be required by the
applicable rules and regulations of the Commission and the
instructions applicable to the form of such Shelf Registration
Statement, and furnish to the Electing Holders a copy of any such
supplement or amendment;
(v) comply with the provisions of the Securities Act with
respect to the disposition of all of the Registrable Securities
covered by such Shelf Registration Statement in accordance with the
intended methods of disposition by the Electing Holders provided for
in such Shelf Registration Statement;
(vi) provide (A) the Electing Holders, (B) the underwriters
(which term, for purposes of this Exchange and Registration Rights
Agreement, shall include a person deemed to be an underwriter within
the meaning of Section 2(a)(11) of the Securities Act), if any,
thereof, (C) any sales or placement agent therefor, (D) counsel for
any such underwriter or agent and (E) not more than one counsel for
all the Electing Holders the opportunity to participate in the
preparation of such Shelf Registration Statement, each prospectus
included therein or filed with the Commission and each amendment or
supplement thereto;
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(vii) for a reasonable period prior to the filing of such
Shelf Registration Statement, and throughout the period specified in
Section 2(b), make available at reasonable times at the Company's
principal place of business or such other reasonable place for
inspection by the persons referred to in Section 3(d)(vi) who shall
certify to the Company that they have a current intention to sell
the Registrable Securities pursuant to the Shelf Registration such
financial and other information and books and records of the
Company, and cause the officers, employees, counsel and independent
certified public accountants of the Company to respond to such
inquiries, as shall be reasonably necessary, in the judgment of the
respective counsel referred to in such Section, to conduct a
reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that each such party shall first
agree in writing with the Company that any information that is
reasonably designated by the Company in writing as confidential at
the time of delivery of such information shall be kept confidential
by such persons and shall be used solely for the purposes of
exercising rights under this agreement, until such time as (A) such
information becomes a matter of public record (whether by virtue of
its inclusion in such registration statement or otherwise), or (B)
such person shall be required so to disclose such information
pursuant to a subpoena or order of any court or other governmental
agency or body having jurisdiction over the matter (subject to the
requirements of such order, and only after such person shall have
given the Company prompt prior written notice of such requirement),
or (C) such information is required to be set forth in such Shelf
Registration Statement or the prospectus included therein or in an
amendment to such Shelf Registration Statement or an amendment or
supplement to such prospectus in order that such Shelf Registration
Statement, prospectus, amendment or supplement, as the case may be,
complies with applicable requirements of the federal securities laws
and the rules and regulations of the Commission and does not contain
an untrue statement of a material fact or omit to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(viii) promptly notify each of the Electing Holders, any sales
or placement agent therefor and any underwriter thereof (which
notification may be made through any managing underwriter that is a
representative of such underwriter for such purpose) and confirm
such advice in writing, (A) when such Shelf Registration Statement
or the prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with
respect to such Shelf Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any comments
by the Commission and by the blue sky or securities commissioner or
regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such Shelf Registration
Statement or prospectus or for additional information,
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(C) of the issuance by the Commission of any stop order suspending
the effectiveness of such Shelf Registration Statement or the
initiation or threatening of any proceedings for that purpose, (D)
if at any time the representations and warranties of the Company
contemplated by Section 3(d)(xvii) or Section 5 cease to be true and
correct in all material respects, (E) of the receipt by the Company
of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose, or (F) if at any time when a prospectus is required to
be delivered under the Securities Act, that such Shelf Registration
Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects
to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances then existing;
(ix) use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of such registration statement or
any post-effective amendment thereto at the earliest practicable
date;
(x) if requested in writing by any managing underwriter or
underwriters, any placement or sales agent or any Electing Holder,
promptly incorporate in a prospectus supplement or post-effective
amendment such information as is required by the applicable rules
and regulations of the Commission and as such managing underwriter
or underwriters, such agent or such Electing Holder specifies should
be included therein relating to the terms of the sale of such
Registrable Securities, including information with respect to the
principal amount of Registrable Securities being sold by such
Electing Holder or agent or to any underwriters, the name and
description of such Electing Holder, agent or underwriter, the
offering price of such Registrable Securities and any discount,
commission or other compensation payable in respect thereof, the
purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable
Securities to be sold by such Electing Holder or agent or to such
underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification
of the matters to be incorporated in such prospectus supplement or
post-effective amendment;
(xi) furnish to each Electing Holder, each placement or sales
agent, if any, therefor, each underwriter, if any, thereof and the
respective counsel referred to in Section 3(d)(vi), an executed copy
(or, in the case of an Electing Holder, a conformed copy) of such
Shelf Registration Statement, each such amendment and supplement
thereto (in each case including all exhibits thereto (in the case of
an Electing Holder of
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Registrable Securities, upon request) and documents incorporated by
reference therein) and such number of copies of such Shelf
Registration Statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested
by such Electing Holder, agent or underwriter, as the case may be),
provided that the Company has agreed to do so in any underwriting
agreement; and furnish to each Electing Holder, each placement or
sales agent, if any, therefor, each underwriter, if any, thereof and
the respective counsel referred to in Section 3(d)(vi), a copy of
the prospectus included in such Shelf Registration Statement
(including each preliminary prospectus and any summary prospectus),
in conformity in all material respects with the applicable
requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder, and such
other documents, as such Electing Holder, agent, if any, and
underwriter, if any, may reasonably request in writing in order to
facilitate the offering and disposition of the Registrable
Securities owned by such Electing Holder, offered or sold by such
agent or underwritten by such underwriter and to permit such
Electing Holder, agent and underwriter to satisfy the prospectus
delivery requirements of the Securities Act; and the Company hereby
consents to the use of such prospectus (including such preliminary
and summary prospectus) and any amendment or supplement thereto by
each such Electing Holder and by any such agent and underwriter, in
each case in the form most recently provided to such person by the
Company, in connection with the offering and sale of the Registrable
Securities covered by the prospectus (including such preliminary and
summary prospectus) or any supplement or amendment thereto;
(xii) use best efforts to (A) register or qualify the
Registrable Securities to be included in such Shelf Registration
Statement under such securities laws or blue sky laws of such
jurisdictions as any Electing Holder and each placement or sales
agent, if any, therefor and underwriter, if any, thereof shall
reasonably request in writing, (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 and for so long as may
be necessary to enable any such Electing Holder, agent or
underwriter to complete its distribution of Securities pursuant to
such Shelf Registration Statement, but not to extend the required
period of effectiveness of such Shelf Registration Statement and (C)
take any and all other actions as may be reasonably necessary or
advisable to enable each such Electing Holder, agent, if any, and
underwriter, if any, to consummate the disposition in such
jurisdictions of such Registrable Securities; provided, however,
that neither the Company nor 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
13
jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders;
(xiii) use its best efforts to obtain the consent or approval
of each governmental agency or authority, whether federal, state or
local, which may be required to effect the Shelf Registration or the
offering or sale in connection therewith or to enable the selling
holder or holders to offer, or to consummate the disposition of,
their Registrable Securities;
(xiv) unless any Registrable Securities shall be in book-entry
only form, cooperate with the Electing Holders and the managing
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be
sold, which certificates, if so required by any securities exchange
upon which any Registrable Securities 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 to be in such
denominations and registered in such names as the managing
underwriters may request in writing at least two business days prior
to any sale of the Registrable Securities;
(xv) provide a CUSIP number for all Registrable Securities,
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 any Electing
Holders aggregating at least 20% in aggregate principal amount of
the Registrable Securities at the time outstanding shall request in
writing in order to expedite or facilitate the disposition of such
Registrable Securities;
(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 Shelf 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 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; (B) obtain an opinion of 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, or
as any Electing Holders of at least 20% in aggregate principal
amount of the
14
Registrable Securities at the time outstanding may reasonably
request in writing, addressed to such Electing Holder or Electing
Holders and the placement or sales agent, if any, therefor and the
underwriters, if any, thereof and dated the effective date of such
Shelf Registration Statement (and if such Shelf Registration
Statement contemplates an underwritten offering of a part or all of
the Registrable Securities, 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 its subsidiaries;
the qualification of the Company and its subsidiaries to transact
business as foreign corporations; 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,
authentication and issuance, and the validity and enforceability, of
the Securities; the absence of material legal or governmental
proceedings involving the Company; the absence of 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, the offering and
sale of the Registrable Securities, 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 Shelf 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 Shelf
Registration Statement or most recent post-effective amendment
thereto, as the case may be, the absence from such Shelf
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
and other financial information contained therein) of an untrue
statement of a material fact or the omission to state therein a
material fact necessary to make the statements therein 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) obtain a "cold
comfort" letter or letters from the independent certified public
accountants of the Company addressed to the selling Electing
Holders, the placement or sales agent, if any, therefor or the
underwriters, if any, thereof, dated (i) the effective date of such
Shelf Registration Statement and (ii) the effective date of any
prospectus supplement to the prospectus included in such Shelf
Registration Statement or post-effective amendment to such Shelf
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
Shelf Registration Statement
15
contemplates an underwritten offering pursuant to any prospectus
supplement to the prospectus included in such Shelf Registration
Statement or post-effective amendment to such Shelf 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 writing by any Electing Holders of
at least 20% in aggregate principal amount of the Registrable
Securities at the time outstanding or the placement or sales agent,
if any, therefor and the managing underwriters, if any, thereof 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; 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 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;
(xix) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable 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 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
Shelf Registration Statement relating to such Registrable
Securities, to exercise usual standards of due diligence in respect
thereto and, if any portion of the offering contemplated by such
Shelf Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of such
Registrable Securities, (B) indemnifying any such qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof (or to such
16
other customary extent as may be requested in writing 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, provided that the
Company will not be responsible for any fees to be paid to such
qualified independent underwriter; and
(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 Shelf 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).
(e) In the event that the Company would be required, pursuant to
Section 3(d)(viii)(F) above, to notify the Electing Holders, 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 of
the Electing Holders, to each placement or sales agent, if any, and to
each such underwriter, if any, a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to
purchasers of Registrable Securities, 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. Each Electing Holder agrees that upon receipt
of any notice from the Company pursuant to Section 3(d)(viii)(F) hereof,
such Electing Holder shall forthwith discontinue the disposition of
Registrable Securities pursuant to the Shelf Registration Statement
applicable to such Registrable Securities until such Electing Holder shall
have received copies of such amended or supplemented prospectus, and if so
directed by the Company, such Electing Holder shall deliver to the Company
(at the Company's expense) all copies, other than permanent file copies,
then in such Electing Holder's possession of the prospectus covering such
Registrable Securities at the time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its Notice
Questionnaire, the Company may require such Electing Holder to furnish to
the Company such additional information regarding such Electing Holder and
such Electing Holder's intended method of distribution of Registrable
Securities as may be required in order to comply with the Securities Act.
Each such Electing Holder agrees to notify the Company as promptly as
practicable of any inaccuracy or change in information previously
furnished by such Electing Holder 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 contains or would contain an untrue statement
17
of a material fact regarding such Electing Holder or such Electing
Holder's intended method of disposition of such Registrable Securities or
omits to state any material fact regarding such Electing Holder or such
Electing Holder's intended method of disposition of such Registrable
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 the disposition of such Registrable
Securities, 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, provided that the expenses incurred by the Company solely as a
result of an Electing Holder's inaccuracy, change in information or
omission will be paid by such Electing Holder.
(g) Until the expiration of two years after the Closing Date, the
Company will not, and will not permit any of its "affiliates" (as defined
in Rule 144) to, resell any of the Securities that have been reacquired by
any of them except pursuant to an effective registration statement under
the Securities Act.
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 registration, filing and review, (b) all fees and expenses
in connection with the qualification of the Securities for offering and sale
under the State securities and blue sky laws referred to in Section 3(d)(xii)
hereof, (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 for delivery and the expenses of printing or producing
any underwriting agreements, agreements among underwriters, selling agreements
and blue sky memoranda and all other documents in connection with the offering,
sale or delivery of Securities to be disposed of (including certificates
representing the Securities), (d) messenger, telephone and delivery expenses
relating to the offering, sale or delivery of 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) any fees charged by securities rating services for
18
rating the Securities, and (j) 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 reasonably incurred, assumed or paid by any
holder of Registrable Securities 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 in writing therefor. Notwithstanding the foregoing, the holders of
the Registrable Securities being registered shall pay all agency fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Registrable 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.
5. Representations and Warranties.
The Company and each Guarantor, jointly and severally, represent and
warrant to, and agree with, the Initial Purchaser and each of the holders from
time to time of Registrable Securities that:
(a) Each registration statement covering Registrable Securities and
each prospectus (including any preliminary or summary prospectus)
contained therein or furnished pursuant to Section 3(d) or Section 3(c)
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, 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
Effective Time when a prospectus would be required to be delivered under
the Securities Act, other than from (i) such time as a notice has been
given to holders of Registrable Securities 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, each such registration statement,
and each prospectus (including any summary prospectus) contained therein
or furnished pursuant to Section 3(d) or Section 3(c) 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 sales or placement agent or underwriter expressly for use
therein.
19
(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 sales or placement agent or underwriter
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 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, nor will such action result
in any violation of the provisions of the certificate of incorporation, as
amended, or the by-laws of the Company or the Guarantors or 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; 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 the
Guarantors of the transactions contemplated by this Exchange and
Registration Rights Agreement, except the registration under the
Securities Act of the 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
Securities.
(d) This Exchange and Registration Rights Agreement has been duly
authorized, executed and delivered by the Company.
6. Indemnification.
(a) Indemnification by the Company and the Guarantors. The Company
and the Guarantors, jointly and severally, will indemnify and hold harmless each
of the holders of Registrable Securities included in an Exchange Registration
Statement, 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 against any losses, claims, damages or liabilities, joint or several,
to which such holder, agent or underwriter may become subject under the
Securities Act or otherwise, insofar as such losses, claims,
20
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 Shelf Registration
Statement, as the case may be, under which such Registrable Securities were
registered under the Securities Act, or any preliminary, final or summary
prospectus contained therein or furnished by the Company to 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 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
neither the Company nor any of 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.
(b) Indemnification by the Holders and any Agents and Underwriters.
The Company may require, as a condition to including any Registrable Securities
in any registration statement filed pursuant to Section 2(b) hereof and 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 or from any sales or placement agent,
severally and not jointly, to (i) indemnify and hold harmless the Company, the
Guarantors, and all other holders of Registrable Securities, against any losses,
claims, damages or liabilities to which the Company, 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 sales or placement agent or 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; 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.
21
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) 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) or 6(b) 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.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) 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(d) 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
22
6(d). 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(d), no holder 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 (after deducting any fees, discounts
and commissions applicable thereto) exceeds the amount of any damages which such
holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission, and no agent or underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Registrable 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' and any
agents' or underwriters' obligations in this Section 6(d) 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.
(e) The obligations of the Company and the Guarantors under this
Section 6 shall be in addition to any liability which the Company or the
Guarantors may otherwise have and shall extend, upon the same terms and
conditions, to each officer, director and partner of each holder, agent and
underwriter and each person, if any, who controls any holder, agent or
underwriter within the meaning of the Securities Act; and the obligations of the
holders and any agents or underwriters contemplated by this Section 6 shall be
in addition to any liability which 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 the Guarantors (including any person who,
with his consent, is named in any registration statement as about to become a
director of the Company or the Guarantors) and to each person, if any, who
controls the Company 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 Electing Holders holding at least a majority in aggregate principal amount of
the Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are reasonably acceptable
to the Company.
(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
23
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 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 Section 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 may reasonably request in writing, all to the extent
required from time to time to enable such holder to sell Registrable 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 written request of any holder of
Registrable Securities in connection with that holder's sale pursuant to Rule
144, the Company shall deliver to such holder 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 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 Initial Purchaser and the holders from time
to time of the Registrable Securities may be irreparably harmed by any such
failure, and accordingly agree that the Initial Purchaser 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 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 the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Company, to it
at Titan International, Inc., 2701 Spruce Street, Quincy, Illinois 62301,
Attention: Cheri T. Holley, Vice President, Secretary and
24
General Counsel, 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 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 any holder of Registrable Securities, any
director, officer or partner of 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 Registrable
Securities pursuant to the Purchase Agreement and the transfer and registration
of Registrable Securities by such holder and the consummation of an Exchange
Offer.
(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
25
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. 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 shall be made available for inspection and copying on any business
day upon written notice to the Company by any holder of Registrable Securities
for proper purposes only (which shall mean any purpose related to the rights of
the holders of Registrable Securities under the Securities, the Indenture and
this Agreement) at the offices of the Company at the address thereof set forth
in Section 9(c) above and 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.
26
If the foregoing is in accordance with your understanding, please
sign and return to us one for the Company, each of the Guarantors and the
Initial Purchase plus one for each counsel counterparts hereof, and upon the
acceptance hereof by you, on behalf of the Initial Purchaser, this letter and
such acceptance hereof shall constitute a binding agreement among the Initial
Purchaser, the Guarantors and the Company.
Very truly yours,
TITAN INTERNATIONAL, INC.
By____________________________________________
Name:
Title:
GUARANTORS:
TITAN MARKETING SERVICES, INC.
TITAN WHEEL CORPORATION OF ILLINOIS
TITAN WHEEL CORPORATION OF IOWA
TITAN WHEEL CORPORATION OF SOUTH CAROLINA
TITAN WHEEL CORPORATION OF VIRGINIA
TITAN INVESTMENT CORPORATION
TITAN TIRE CORPORATION
TITAN TIRE CORPORATION OF BRYAN
TITAN TIRE CORPORATION OF FREEPORT
TITAN TIRE CORPORATION OF NATCHEZ
TITAN TIRE CORPORATION OF TEXAS
TITAN DISTRIBUTION, INC.
DYNEER CORPORATION
DICO INC.
AUTOMOTIVE WHEELS, INC.
NIEMAN'S, LTD.
By____________________________________________
Name:
Title:
[Registration Rights Agreement]
CONFIRMED AND ACCEPTED,
as of the date first above written:
GOLDMAN, SACHS & CO.
By ________________________________________
(Goldman, Sachs & Co.)
[Registration Rights Agreement]
Exhibit A
TITAN INTERNATIONAL, INC.
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 Titan International, Inc. (the
"Company") 8% Senior Unsecured Notes due 2012 (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 Titan
International, Inc., 2701 Spruce Street, Quincy, Illinois 62301, (212) 228-6011,
Attention: Todd Shoot.
- ----------
* Not less than 28 calendar days from date of mailing.
A-1
TITAN INTERNATIONAL, INC.
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 Titan International, Inc.
(the "Company") and the Initial Purchaser 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 8% Senior Unsecured Notes due 2012 (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 [DEADLINE FOR RESPONSE]. 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.
A-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, Section 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 Appendix A to the Prospectus and
as Exhibit B 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:
A-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:
A-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.
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
A-5
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.
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, 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:
________________________________
________________________________
________________________________
________________________________
________________________________
(ii) With a copy to:
________________________________
________________________________
________________________________
________________________________
________________________________
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 in all respects by the laws of the State of New
York.
A-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 [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
________________________________
________________________________
________________________________
________________________________
________________________________
A-7
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
U.S. Bank National Association
Corporate Trust Services
10 West Market Street
Suite 1150
Indianapolis, Indiana 46204
Attention: Trust Officer
Re: Titan International, Inc. (the "Company")
8% Senior Unsecured Notes due 2012
Dear Sirs:
Please be advised that ___________________________ has transferred $ ___________
aggregate principal amount of the above-referenced Notes pursuant to an
effective Registration Statement on Form [__] (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 [DATE] 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)
B-1