EXHIBIT 4.4
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF DECEMBER 5, 2003
BY AND AMONG
GENERAL NUTRITION CENTERS, INC.
THE GUARANTORS LISTED ON SCHEDULE I HERETO
AND
LEHMAN BROTHERS INC.
J.P. MORGAN SECURITIES INC.
UBS SECURITIES LLC
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This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of December 5, 2003, by and among General Nutrition Centers,
Inc., a Delaware corporation (the "COMPANY"), the guarantors listed on Schedule
I hereto (the "GUARANTORS") and Lehman Brothers Inc., J.P. Morgan Securities
Inc. and UBS Securities LLC (each, an "INITIAL PURCHASER" and, collectively, the
"INITIAL PURCHASERS"), each of whom has agreed to purchase the Company's 8 1/2%
Senior Subordinated Notes due 2010 (the "INITIAL NOTES") pursuant to the
Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
November 25, 2003 (the "PURCHASE AGREEMENT"), by and among the Company, the
Guarantors and the Initial Purchasers. In order to induce the Initial Purchasers
to purchase the Initial Notes, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchasers set
forth in Section 7 of the Purchase Agreement. Capitalized terms used herein and
not otherwise defined shall have the meaning assigned to them in the Indenture,
dated as of December 5, 2003, among the Company, the Guarantors and U.S. Bank,
N.A., as trustee, relating to the Initial Notes and the Exchange Notes (the
"INDENTURE").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
BUSINESS DAY: Any day other than a Saturday, a Sunday or a day on which
banking institutes in The City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of the delivery by the Company to
the Registrar under the Indenture of Exchange Notes in the same aggregate
principal amount as the aggregate principal amount of Initial Notes tendered by
Holders thereof pursuant to the Exchange Offer.
CONSUMMATION DEADLINE: As defined in Section 3(b) hereof.
EFFECTIVENESS DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE NOTES: The Company's 8 1/2% Senior Subordinated Notes due 2010
to be issued pursuant to the Indenture: (i) in the Exchange Offer or (ii) as
contemplated by Section 4 hereof.
EXCHANGE OFFER: The exchange and issuance by the Company of a principal
amount of Exchange Notes (which shall be registered pursuant to the Exchange
Offer Registration Statement) equal to the outstanding principal amount of
Initial Notes that are properly tendered and not withdrawn by such Holders in
connection with such exchange and issuance, as required by the terms of this
Agreement.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, (i) that is filed pursuant to the provisions of
this Agreement, (ii) including the Prospectus included therein, and (iii)
including all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
FILING DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
HOLDERS: As defined in Section 2 hereof.
PROSPECTUS: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
RECOMMENCEMENT DATE: As defined in Section 6(d) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: The Exchange Offer Registration Statement or
the Shelf Registration Statement, as applicable.
RULE 144: Rule 144 promulgated under the Act.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
SUSPENSION NOTICE: As defined in Section 6(d) hereof.
SUSPENSION PERIOD: The period of time (a) that the Company may delay
filing and distributing (i) a post-effective amendment to (x) the Shelf
Registration Statement or (y) after the date on which the Exchange Offer is
Consummated, the Exchange Offer Registration Statement that is required to be
effective to permit resales of Exchange Notes by Broker-Dealers as contemplated
by Section 3(c) below or (ii) a supplement to any related Prospectus so that, as
thereafter delivered to Holders or purchasers of Transfer Restricted Securities,
the Prospectus will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances
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under which they were made, not misleading if the Company determines reasonably
and in good faith that compliance with the disclosure obligations necessary to
maintain the effectiveness of such Registration Statement at such time would
reasonably be expected to have a material adverse effect on the Company or a
pending financing, acquisition, disposition, merger or other material corporate
transaction involving the Company or any of its subsidiaries (it being
understood that, in the case of this clause (a), the Company shall be required
to proceed in good faith to amend such Registration Statement or supplement to
such related Prospectus to describe such events or to otherwise cause such
Registration Statement to become effective and the related Prospectus to again
be usable at such time as so doing would not have such a material adverse
effect), or (b) when (i) the Shelf Registration Statement or (ii) after the date
on which the Exchange Offer is Consummated, the Exchange Offer Registration
Statement that is required to remain effective to permit resales of Exchange
Notes by Broker-Dealers as contemplated by Section 3(c) below, in each case,
ceases to be effective or any related Prospectus is not usable solely because
the Company filed a post-effective amendment to any such Registration Statement
to include annual audited financial information with respect to the Company and
such post-effective amendment is not yet effective and needs to be declared
effective to permit Holders to use the related Prospectus (it being understood
that, in the case of this clause (b), the Company shall be required to use its
commercially reasonable efforts to cause any such post-effective amendment to
become effective as soon as practicable); provided that such Suspension Periods
shall not occur more than 45 consecutive days, or more than 75 days in the
aggregate; and provided further that upon the termination of such Suspension
Period, the Company shall promptly advise each Holder and purchaser and, if
requested by any such person, confirm such advice in writing that such
Suspension Period has been terminated.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each Initial Note until the earliest to
occur of (a) the date on which such Initial Note has been exchanged in the
Exchange Offer by a Person other than a Broker-Dealer for an Exchange Note
entitled to be resold to the public by the Holder thereof without complying with
the prospectus delivery requirements of the Act, (b) following the exchange by a
Broker-Dealer in the Exchange Offer of an Initial Note for an Exchange Note, the
date on which such Exchange Note is sold to a purchaser who receives from such
Broker-Dealer on or prior to the date of such sale a copy of the Prospectus
contained in the Exchange Offer Registration Statement, (c) the date on which
such Initial Note has been effectively registered under the Act and disposed of
in accordance with the Shelf Registration Statement (and the purchasers thereof
have been issued Exchange Notes) or (d) the date on which such Initial Note is
distributed to the public pursuant to Rule 144.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "HOLDER") whenever such Person owns Transfer Restricted Securities.
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SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
law or Commission policy (after the procedures set forth in Section 6(a)(i)
below have been complied with), the Company and the Guarantors shall (i) cause
the Exchange Offer Registration Statement to be filed with the Commission no
later than 150 days after the Closing Date (such 150th day being the "FILING
DEADLINE"), and (ii) use all commercially reasonable efforts to cause such
Exchange Offer Registration Statement to become effective no later than 250 days
after the Closing Date (such 250th day being the "EFFECTIVENESS DEADLINE"). The
Exchange Offer shall be on the appropriate form permitting (i) registration of
the Exchange Notes to be offered in exchange for the Initial Notes that are
Transfer Restricted Securities and (ii) resales of Exchange Notes by
Broker-Dealers that tendered into the Exchange Offer Initial Notes that such
Broker-Dealer acquired for its own account as a result of market-making
activities or other trading activities (other than Initial Notes acquired
directly from the Company or any of its Affiliates) as contemplated by Section
3(c) below.
(b) The Company and the Guarantors shall use all commercially
reasonable efforts to cause the Exchange Offer Registration Statement to be
effective continuously, and shall keep the Exchange Offer open for a period of
not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 20 Business Days. The Company and the
Guarantors shall cause the Exchange Offer to comply with all applicable federal
and state securities laws. No securities other than the Exchange Notes shall be
included in the Exchange Offer Registration Statement. The Company and the
Guarantors shall use all commercially reasonable efforts to cause the Exchange
Offer to be Consummated on the earliest practicable date after the Exchange
Offer Registration Statement has become effective, but in no event later than 30
Business Days thereafter, or longer, if required by the federal securities laws
(such 30th (or longer) day being the "CONSUMMATION DEADLINE").
(c) The Company shall include a "Plan of Distribution" section in
the Prospectus contained in the Exchange Offer Registration Statement and
indicate therein that any Broker-Dealer who holds Transfer Restricted
Securities that were acquired for the account of such Broker-Dealer as a result
of market-making activities or other trading activities (other than Initial
Notes acquired directly from the Company or any Affiliate of the Company), may
exchange such Transfer Restricted Securities pursuant to the Exchange Offer.
Such "Plan of Distribution" section shall also contain all other information
with respect to such sales by such Broker-Dealers that the Commission may
require in order to permit such sales pursuant thereto, but such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose the amount of
Transfer Restricted Securities held by any such Broker-Dealer, except to the
extent required by the Commission as a result of a change in policy, rules or
regulations after the date of this Agreement. See the Shearman & Sterling
no-action letter (available July 2, 1993).
Because such Broker-Dealer may be deemed to be an "underwriter" within
the meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any Exchange
Notes received by such Broker-Dealer in the Exchange Offer, the Company and
Guarantors shall permit the use of the Prospectus contained in the Exchange
Offer Registration Statement by such Broker-Dealer to satisfy such prospectus
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delivery requirement. To the extent necessary to ensure that the Prospectus
contained in the Exchange Offer Registration Statement is available for sales of
Exchange Notes by Broker-Dealers, the Company and the Guarantors agree to use
all commercially reasonable efforts to keep the Exchange Offer Registration
Statement continuously effective, supplemented, amended and current as required
by and subject to the provisions of Sections 6(a) and (c) hereof and subject to
any applicable Suspension Period and in conformity with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of 180 days from the date on which the
Exchange Offer is Consummated or such shorter period ending on the date when all
Transfer Restricted Securities covered by such Registration Statement have been
sold pursuant thereto; provided, however, that if the Exchange Offer
Registration Statement ceases to be effective during any Suspension Period, such
180-day period shall be extended by the number of days such Suspension Period
continued. The Company and the Guarantors shall provide sufficient copies of the
latest version of such Prospectus to such Broker-Dealers, promptly upon request,
and in no event later than two Business Days after such request, at any time
during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company and the Guarantors are
not (A) required to file the Exchange Offer Registration Statement or (B)
permitted to Consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy (after the Company and the
Guarantors have complied with the procedures set forth in Section 6(a)(i) below)
or (ii) any Holder of Transfer Restricted Securities notifies the Company prior
to 20 Business Days following Consummation of the Exchange Offer (but not prior
to the filing of the Exchange Offer Registration Statement) that (A) such Holder
was prohibited by law or Commission policy from participating in the Exchange
Offer, (B) such Holder may not resell the Exchange Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder or (C) such Holder is a Broker-Dealer
and holds Initial Notes acquired directly from the Company or any of its
Affiliates, then the Company and the Guarantors shall:
(x) use all commercially reasonable efforts on or prior to 45 days
after the earlier of (i) the date as of which the Company determines that the
Exchange Offer Registration Statement will not be or cannot be, as the case may
be, filed as a result of clause (a)(i) above and (ii) the date on which the
Company receives the notice specified in clause (a)(ii) above (45 days after
such earlier date, the "FILING DEADLINE"), to file a shelf registration
statement pursuant to Rule 415 under the Act (which may be an amendment to the
Exchange Offer Registration Statement (including the Prospectus included therein
and all amendments and supplements thereto (including post-effective amendments)
and all exhibits and material incorporated by reference therein, the "SHELF
REGISTRATION STATEMENT")), relating to all Transfer Restricted Securities, and
(y) use all commercially reasonable efforts to cause such Shelf
Registration Statement to become effective on or prior to 75 days after the
Filing Deadline for the Shelf Registration Statement (such 75th day, the
"EFFECTIVENESS DEADLINE").
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If, after the Company and the Guarantors have filed an Exchange Offer
Registration Statement that satisfies the requirements of Section 3(a) above,
the Company and the Guarantors are required to file and make effective a Shelf
Registration Statement solely because the Exchange Offer is not permitted under
applicable federal law (i.e., clause (a)(i)(B) above), then the filing of the
Exchange Offer Registration Statement shall be deemed to satisfy the
requirements of clause (x) above; provided that, in such event, the Company and
the Guarantors shall remain obligated to meet the Effectiveness Deadline set
forth in clause (y).
To the extent necessary to ensure that the Shelf Registration Statement
is available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a) and the other securities required
to be registered therein pursuant to Section 6(b)(ii) hereof, the Company and
the Guarantors shall use all commercially reasonable efforts to keep any Shelf
Registration Statement required by this Section 4(a) continuously effective,
supplemented, amended and current as required by and subject to the provisions
of Sections 6(b) and (c) hereof and subject to any Suspension Period and in
conformity with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of two years (as extended pursuant to Section 6(d) hereof) following the
Closing Date, or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Shelf Registration Statement have been
sold pursuant thereto or when all Initial Notes or Exchange Notes cease to be
Transfer Restricted Securities.
(b) Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 15 days after receipt of a request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as applicable, of
the Act, or other information reasonably requested by the Company and required
by Regulation S-K of the Act, for use in connection with any Shelf Registration
Statement or Prospectus or preliminary prospectus included therein. No Holder of
Transfer Restricted Securities shall be entitled to liquidated damages pursuant
to Section 5 hereof unless and until such Holder shall have provided all such
information. Each selling Holder agrees to promptly furnish additional
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the applicable Filing Deadline, (ii)
any such Registration Statement has not been declared effective by the
Commission on or prior to the applicable Effectiveness Deadline, (iii) the
Exchange Offer has not been Consummated on or prior to the Consummation Deadline
or (iv) any Registration Statement required by this Agreement is filed and
declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose, except during any Suspension Period (each such
event referred to in clauses (i) through (iv), a "REGISTRATION DEFAULT"), then
the Company and the Guarantors hereby jointly and severally agree to pay,
subject to Section 4(b) hereof, to each Holder of Transfer Restricted Securities
affected thereby liquidated damages in an amount equal to 0.25% per annum of the
principal amount of Transfer Restricted Securities held by such Holder for each
day that the Registration
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Default continues for the first 90-day period immediately following the
occurrence of such Registration Default. The amount of the liquidated damages
shall increase by an additional 0.25% per annum of the principal amount of
Transfer Restricted Securities with respect to each subsequent 90-day period
until all Registration Defaults have been cured, up to a maximum amount of
liquidated damages equal to 1.00% per annum of the principal amount of Transfer
Restricted Securities; provided that the Company and the Guarantors shall in no
event be required to pay liquidated damages for more than one Registration
Default at any given time. Notwithstanding anything to the contrary set forth
herein, (1) upon filing of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of (i) above, (2)
upon the effectiveness of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of (ii) above, (3)
upon Consummation of the Exchange Offer, in the case of (iii) above, or (4) upon
the filing of a post-effective amendment to the Registration Statement or an
additional Registration Statement that causes the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement) to again be
declared effective or made usable in the case of (iv) above, the liquidated
damages payable with respect to the Transfer Restricted Securities as a result
of such clause (i), (ii), (iii) or (iv), as applicable, shall cease accruing.
All accrued liquidated damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Indenture, on
each Interest Payment Date, as more fully set forth in the Indenture and the
Notes. Notwithstanding the fact that any securities for which liquidated damages
are due cease to be Transfer Restricted Securities, all obligations of the
Company and the Guarantors to pay liquidated damages with respect to securities
shall survive until such time as such obligations with respect to such
securities shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company and the Guarantors, and in the case of clause
(z)(ii) of this Section 6(a), each Holder (as applicable), shall (x) comply with
all applicable provisions of Section 6(c) below, (y) use all commercially
reasonable efforts to effect such exchange and to permit the resale of Exchange
Notes by Broker-Dealers that properly tendered in the Exchange Offer Initial
Notes that such Broker-Dealer acquired for its own account as a result of its
market-making activities or other trading activities (other than Initial Notes
acquired directly from the Company or any of its Affiliates) being sold in
accordance with the intended method or methods of distribution thereof, and (z)
comply with all of the following provisions:
(i) If, following the date hereof there has been
announced a change in Commission policy with respect to exchange offers
such as the Exchange Offer, that in the reasonable opinion of counsel
to the Company raises a substantial question as to whether the Exchange
Offer is permitted by applicable federal law, the Company and the
Guarantors hereby agree either to (x) seek a no-action letter or other
favorable decision from the Commission allowing the Company and the
Guarantors to Consummate an Exchange Offer for such Transfer Restricted
Securities or (y) file, in accordance with Section 4(a) hereof, a Shelf
Registration Statement to permit the registration and/or resale of the
Transfer Restricted Securities that would otherwise be covered by the
Exchange
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Offer Registration Statement but for the announcement of a change in
Commission policy. In the case of clause (x) above, the Company and the
Guarantors hereby agree to pursue the issuance of such a decision to
the Commission staff level, but shall not be required to take
commercially unreasonable actions in connection therewith. In
connection with the foregoing, the Company and the Guarantors hereby
agree to take all such other reasonable actions as may be requested by
the Commission or otherwise required in connection with the issuance of
such decision, including without limitation (A) participating in
telephonic conferences with the Commission, (B) delivering to the
Commission staff an analysis prepared by counsel to the Company setting
forth the legal bases, if any, upon which such counsel has concluded
that such an Exchange Offer should be permitted and (C) diligently
pursuing a resolution (which need not be favorable) by the Commission
staff.
(ii) As a condition to its participation in the Exchange
Offer, each Holder of Transfer Restricted Securities (including,
without limitation, any Holder who is a Broker-Dealer) shall furnish,
upon the request of the Company (which may be contained in the letter
of transmittal contemplated by the Exchange Offer Registration
Statement), prior to the Consummation of the Exchange Offer, a written
representation to the Company and the Guarantors (which may be
contained in the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that (A) it is not an
Affiliate of the Company, (B) it is not engaged in, and does not intend
to engage in, and has no arrangement or understanding with any person
to participate in, a distribution of the Exchange Notes to be issued in
the Exchange Offer, (C) it is acquiring the Exchange Notes in its
ordinary course of business and (D) only if such Holder is a
Broker-Dealer that will receive Exchange Notes in exchange for Initial
Notes that such Broker-Dealer acquired for its own account as a result
of market-making or other trading activities, it will deliver a
Prospectus, as required by law, in connection with any sale of such
Exchange Notes. As a condition to its participation in the Exchange
Offer each Holder using the Exchange Offer to participate in a
distribution of the Exchange Notes shall acknowledge and agree that, if
the resales are of Exchange Notes obtained by such Holder in exchange
for Initial Notes acquired directly from the Company or an Affiliate
thereof, it (1) could not, under Commission policy as in effect on the
date of this Agreement, rely on the position of the Commission
enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters (including, if applicable,
any no-action letter obtained pursuant to clause (i) above), and (2)
must comply with the registration and prospectus delivery requirements
of the Act in connection with a secondary resale transaction and that
such a secondary resale transaction must be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall, upon
request of the Commission, provide a supplemental letter to the
Commission (A) stating that the Company and the Guarantors are
registering the Exchange Offer in reliance on the position of the
Commission enunciated in Exxon Capital Holdings Corporation (available
May 13, 1988), Morgan
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Stanley and Co., Inc. (available June 5, 1991) as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993, and, if
applicable, any no-action letter obtained pursuant to clause (i) above,
(B) including a representation that neither the Company nor any
Guarantor has entered into any arrangement or understanding with any
Person to distribute the Exchange Notes to be received in the Exchange
Offer and that, to the best of the Company's and each Guarantor's
information and belief, each Holder participating in the Exchange Offer
is acquiring the Exchange Notes in its ordinary course of business and
has no arrangement or understanding with any Person to participate in
the distribution of the Exchange Notes received in the Exchange Offer
and (C) any other undertaking or representation required by the
Commission as set forth in any no-action letter obtained pursuant to
clause (i) above, if applicable.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Guarantors shall:
(i) comply with all the provisions of Section 6(c) below
and use all commercially reasonable efforts to effect such registration
to permit the sale of the Transfer Restricted Securities being sold in
accordance with the reasonable intended methods of distribution thereof
(as indicated in the information furnished to the Company pursuant to
Section 4(b) hereof), and pursuant thereto the Company and the
Guarantors will prepare and file with the Commission a Registration
Statement relating to the registration on any appropriate form under
the Act, which form shall be available for the sale of the Transfer
Restricted Securities in accordance with such reasonable intended
methods of distribution thereof within the time periods and otherwise
in accordance with the provisions hereof; and
(ii) issue to any Holder or purchaser of Initial Notes
covered by any Shelf Registration Statement contemplated by this
Agreement, upon the request of any such Holder or purchaser, registered
Initial Notes having an aggregate principal amount equal to the
aggregate principal amount of Initial Notes, in the names as such
Holder or purchaser shall designate.
(c) General Provisions. In connection with any Registration
Statement and any related Prospectus required by this Agreement, the Company and
the Guarantors shall:
(i) use all commercially reasonable efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or 4 hereof,
as applicable. Upon the occurrence of any event that would cause any
such Registration Statement or the Prospectus contained therein (A) to
contain an untrue statement of material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading or (B) not to be effective and usable for
resale of Transfer Restricted Securities during the period required by
this Agreement, the Company and the Guarantors shall file as soon as
reasonably practicable, subject to any applicable Suspension Period, an
appropriate amendment to such Registration Statement to cure such
defect, and, if Commission review is required,
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use all commercially reasonable efforts to cause such amendment to be
declared effective as soon as practicable.
(ii) prepare and file with the Commission such amendments
and post-effective amendments to the applicable Registration Statement
as may be necessary to keep such Registration Statement effective for
the applicable period set forth in Section 3 or 4 hereof, as the case
may be; subject to any applicable Suspension Period, cause the
Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed as and to the extent required
pursuant to Rule 424 under the Act, and to comply fully with Rules 424,
430A and 462, as applicable, under the Act in a timely manner; and
comply with the provisions of the Act with respect to the disposition
of all securities covered by such Registration Statement during the
applicable period in accordance with the reasonable intended methods of
distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise promptly (x) each Holder of Transfer
Restricted Securities named in any Shelf Registration Statement (each,
a "SHELF HOLDER") (solely to the extent the provisions of this clause
(iii) apply to a Shelf Registration Statement) and (y) each Holder that
is a Broker-Dealer that tendered into the Exchange Offer Initial Notes
acquired by such Broker-Dealer for its own account as a result of
market-making activities or other trading activities (solely to the
extent the provisions of this clause (iii) apply to the Exchange Offer
Registration Statement), and, if requested by any such Holder, confirm
such advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed (other than any
Prospectus supplement that names a Holder as a selling securityholder
therein and other than the first filing of the Prospectus included in
the Exchange Offer Registration Statement), and, with respect to any
applicable Registration Statement or any post-effective amendment
thereto, when the same has become effective (other than the initial
effectiveness of the Exchange Offer Registration Statement), (B) of any
request by the Commission for amendments to the Registration Statement
or amendments or supplements to the Prospectus or for additional
information relating thereto, (C) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement under the Act or of the suspension by any state securities
commission of the qualification of the Transfer Restricted Securities
for offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, (D) of the existence of
any fact or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto or any document incorporated by
reference therein untrue, or that requires the making of any additions
to or changes in the Registration Statement in order to make the
statements therein not misleading, or that requires the making of any
additions to or changes in the Prospectus in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading and (E) of any Suspension Period. If at any
time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws,
the Company and
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the Guarantors shall use all commercially reasonable efforts to obtain
the withdrawal or lifting of such order at the earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have
occurred, prepare as soon as reasonably practicable, subject to any
applicable Suspension Period, a supplement or post-effective amendment
to the Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(v) furnish to counsel for the Initial Purchasers
provided in Section 7(b) and to each Shelf Holder, in each case, in
connection with such exchange or sale, if any, before filing with the
Commission, copies of any Registration Statement (in the case of such
counsel) or of any Shelf Registration Statement (in the case of any
such Shelf Holder) or any Prospectus included therein or any amendments
or supplements to any such Registration Statement or Prospectus
(including, upon request, all documents incorporated by reference after
the initial filing of such Registration Statement), which documents
will be subject to the review and comment of such counsel or, if
applicable, such Shelf Holders in connection with such sale, if any,
for a period of at least three Business Days, and the Company will
reasonably consider any comments timely provided by such counsel or, if
applicable, any such Shelf Holder; provided that the Company need not
furnish (x) any amendment or supplement to any Registration Statement
that solely names a Holder as a selling securityholder therein or (y)
the first filing of the Exchange Offer Registration Statement; provided
further, however, that the Company shall furnish to any Shelf Holder
any amendment or supplement to an effective Shelf Registration
Statement that names such Shelf Holder as a selling securityholder
therein;
(vi) upon request, prior to the filing of any document
that is to be incorporated by reference into a Registration Statement
or Prospectus in connection with such exchange or sale, if any, provide
copies of such document to counsel for the Initial Purchasers provided
in Section 7(b) and, in connection with any Shelf Registration
Statement, each Shelf Holder; provided that this requirement shall not
be applicable to any document to be filed by the Company in connection
with its periodic reporting requirements under the Exchange Act,
including with respect to reports to be filed on Form 8-K, Form 10-Q or
Form 10-K;
(vii) in connection with any underwritten offering pursuant
to a Shelf Registration Statement, make available upon reasonable
request, at reasonable times, for inspection by Holders of at least 50%
in aggregate principal amount of the Transfer Restricted Securities
covered by such Shelf Registration Statement (the "MAJORITY HOLDERS")
and any attorney or accountant retained by such Holders solely for the
purpose of conducting a due diligence investigation in connection with
such underwritten offering, all financial and other records, pertinent
corporate documents of the Company
11
and the Guarantors and cause the Company's and the Guarantors' officers
and employees to supply all information reasonably requested by any
such Majority Holders, attorney or accountant in connection with such
Shelf Registration Statement or any post-effective amendment thereto
subsequent to the filing thereof and prior to its effectiveness;
provided that any Holder or representative thereof requesting or
receiving such information shall agree to be bound by reasonable
confidentiality agreements and procedures with respect thereto;
(viii) if reasonably requested by any Holders in connection
with such exchange or sale, include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such Holders may reasonably request to
have included therein that is required by the federal securities laws
to be so included, including, without limitation, information relating
to the "Plan of Distribution" of the Transfer Restricted Securities;
and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Company is
notified of the matters to be included in such Prospectus supplement or
post-effective amendment;
(ix) upon request, furnish to each Shelf Holder in
connection with such registration or sale, without charge, at least one
copy of the Shelf Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(x) upon request, deliver to each Holder without charge,
as many copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as such Persons
reasonably may request; provided that any such copies shall only be
provided to (x) Shelf Holders and (y) Broker-Dealers in order to permit
the use of the Prospectus contained in the Exchange Offer Registration
Statement by such Broker-Dealer to satisfy its prospectus delivery
requirement; the Company and the Guarantors hereby consent to the use
(in accordance with and as required by law) of the Prospectus and any
amendment or supplement thereto by each selling Holder in connection
with the offering and the sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement thereto;
(xi) in connection with an underwritten offering pursuant
to a Shelf Registration Statement, upon the reasonable request of the
Majority Holders, enter into such agreements (including underwriting
agreements) and make such representations and warranties and take all
such other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities
pursuant to any Shelf Registration Statement contemplated by this
Agreement. In such connection, the Company and the Guarantors shall:
(A) upon the reasonable request of the Majority
Holders, furnish (or in the case of paragraphs (2) and (3),
use all commercially reasonable efforts to cause to be
furnished), upon the consummation of such underwritten
offering:
12
(1) to the Holders participating in
such underwritten offering, a certificate, dated such
date, signed on behalf of the Company and each
Guarantor by (x) the President or any Vice President
and (y) a principal financial or accounting officer
of the Company and such Guarantor, confirming, as of
the date thereof, such matters as the Majority
Holders may reasonably request;
(2) to the Holders participating in
such underwritten offering, an opinion, dated the
date of consummation of such underwritten offering,
of counsel for the Company and the Guarantors in
customary form and covering such matters customarily
provided to selling securityholders in an
underwritten offering and such other matters as the
Majority Holders may reasonably request; and
(3) to each underwriter of such
underwritten offering, a customary comfort letter,
dated the date of consummation of such underwritten
offering, from the Company's independent accountants,
in the customary form and covering matters of the
type customarily covered in comfort letters to
underwriters in connection with underwritten
offerings; and
(B) deliver such other documents and
certificates as may be reasonably requested by the Majority
Holders to evidence compliance with the matters covered in
clause (A) above and with any customary conditions contained
in the any agreement entered into by the Company and the
Guarantors pursuant to this clause (xi);
(xii) prior to any public offering of Transfer Restricted
Securities pursuant to a Shelf Registration Statement, cooperate with
the Shelf Holders and their counsel in connection with the registration
and qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the Shelf Holders
may reasonably request and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions
of the Transfer Restricted Securities covered by the applicable
Registration Statement; provided, however, that neither the Company nor
any Guarantor shall be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that
would subject it to the service of process in suits or to taxation,
other than as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject;
(xiii) if certificated securities are permitted pursuant to
the Indenture, in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive
legends; and to register such Transfer Restricted Securities in such
denominations and such names as the selling Holders may request at
least two Business Days prior to such sale of Transfer Restricted
Securities;
13
(xiv) use all commercially reasonable efforts to cause the
disposition of the Transfer Restricted Securities covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof to consummate the disposition of such
Transfer Restricted Securities, subject to the proviso contained in
clause (xii) above;
(xv) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration
Statement covering such Transfer Restricted Securities and provide the
Trustee under the Indenture with printed global certificates for the
Transfer Restricted Securities which are in a form eligible for deposit
with the Depository Trust Company;
(xvi) otherwise use all commercially efforts to comply with
all applicable rules and regulations of the Commission, including Rule
158 under the Act; and
(xvii) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith, cooperate with
the Trustee and the Holders to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in accordance
with the terms of the TIA; and execute and use all commercially
reasonable efforts to cause the Trustee to execute, all documents that
may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner.
(d) Restrictions on Holders. Each Holder agrees by acquisition of
a Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(iii)(C) or any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof or of any applicable
Suspension Period (in each case, a "SUSPENSION NOTICE"), such Holder will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the applicable Registration Statement until (i) such Holder has received copies
of the supplemented or amended Prospectus contemplated by Section 6(c)(iv)
hereof, or (ii) such Holder is advised in writing by the Company that the use of
the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus (in
each case, the "RECOMMENCEMENT DATE"). Each Holder receiving a Suspension Notice
hereby agrees that it will either (i) destroy any Prospectuses, other than
permanent file copies, then in such Holder's possession which have been replaced
by the Company with more recently dated Prospectuses or (ii) deliver to the
Company (at the Company's expense) all copies, other than permanent file copies,
then in such Holder's possession of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of the Suspension
Notice. The time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended
by a number of days equal to the number of days in the period from and including
the date of delivery of the Suspension Notice to the Recommencement Date.
14
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Guarantors'
performance of or compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses; (ii) all
fees and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing certificates
for the Exchange Notes to be issued in the Exchange Offer and printing of
Prospectuses), messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for the Company and the Guarantors and of one counsel
for the Shelf Holders as a group, as selected by the Majority Holders; (v) all
application and filing fees in connection with listing the Exchange Notes on a
national securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company and the Guarantors (including any
expenses of any special audit and comfort letters required by or incident to
such performance).
The Company will, in any event, bear its and the Guarantors' internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Guarantors.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company and the Guarantors
will reimburse the Initial Purchasers for the reasonable fees and disbursements
of not more than one counsel, who shall be Latham & Watkins LLP, unless another
firm shall be chosen by the Initial Purchasers.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors agree, jointly and severally,
to indemnify and hold harmless each Holder, its directors, officers and each
Person, if any, who controls such Holder (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act), from and against any and all losses,
claims, damages, liabilities, judgments, (including without limitation, any
legal or other expenses incurred in connection with investigating or defending
any matter, including any action that could give rise to any such losses,
claims, damages, liabilities or judgments) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement, preliminary prospectus or Prospectus (or any amendment or supplement
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (in the case of a preliminary prospectus or Prospectus or any supplement
thereto, in the light of the circumstances under which they were made) not
misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by an untrue statement or omission or alleged untrue
statement or omission that is based upon information relating to any of the
Holders furnished in writing to the Company by any of the Holders. In addition,
the Company shall not be liable to any Holder under the indemnity agreement in
this Section 8(a) to the extent, but only to the extent, that (1) such loss,
claim, damage or liability arises out of, or is based upon, an untrue statement
of a material fact or an omission of a material fact contained in any
15
preliminary prospectus, which untrue statement or omission was completely
corrected in the Prospectus and (2) the Company sustains the burden of proving
that such Holder sold Transfer Restricted Securities to the person alleging such
loss, claim, damage or liability without sending or giving a copy of the
Prospectus within the time required by the Act and (3) the Company had
previously furnished sufficient quantities of the Prospectus to such Holder in
such amounts and within such period of time as required under this Agreement and
(4) such Holder failed to deliver the Prospectus, if required by law to have so
delivered it, and such delivery would have been a complete defense against the
person asserting such loss, claim, damage or liability.
(b) Each Holder of Transfer Restricted Securities agrees,
severally and not jointly, to indemnify and hold harmless the Company and the
Guarantors, and their respective directors and officers, and each person, if
any, who controls (within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act) the Company, or the Guarantors to the same extent as the
foregoing indemnity from the Company and the Guarantors set forth in Section
8(a) above, but only with reference to information relating to such Holder
furnished in writing to the Company by such Holder expressly for use in any
Registration Statement. In no event shall any Holder, its directors, officers or
any Person who controls such Holder be liable or responsible for any amount in
excess of the amount by which the total amount received by such Holder with
respect to its sale of Transfer Restricted Securities pursuant to a Registration
Statement exceeds (i) the amount paid by such Holder for such Transfer
Restricted Securities and (ii) the amount of any damages that such Holder, its
directors, officers or any Person who controls such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PERSON") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all reasonable fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 8(a) and 8(b), a Holder shall not be required
to assume the defense of such action pursuant to this Section 8(c), but may
employ separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
the Holder). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
16
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by a majority of the Holders, in the case of the parties indemnified
pursuant to Section 8(a), and by the Company and Guarantors, in the case of
parties indemnified pursuant to Section 8(b). The indemnifying party shall
indemnify and hold harmless the indemnified party from and against any and all
losses, claims, damages, liabilities and judgments by reason of any settlement
of any action (i) effected with its written consent or (ii) effected without its
written consent if (a) the settlement is entered into more than twenty Business
Days after the indemnifying party received a request from the indemnified party
for reimbursement for the fees and expenses of counsel (in any case where such
fees and expenses are at the expense of the indemnifying party), (b) such
indemnifying party received notice of the terms of such settlement at least 10
Business Days prior to such settlement being entered into and (c) such
indemnifying party did not reimburse such indemnified party in accordance with
such request prior to the date of such settlement; provided that an indemnifying
party shall not be liable for any such settlement effected without its consent
if such indemnifying party, prior to the date of such settlement, (1) reimburses
such indemnified party in accordance with such request for the amount of such
fees and expenses of counsel as the indemnifying party believes in good faith to
be reasonable, and (2) provides written notice to the indemnified party that the
indemnifying party disputes in good faith the reasonableness of the unpaid
balance of such fees and expenses. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any pending
or threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this
Section 8 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company and
the Guarantors, on the one hand, and the Holders, on the other hand, from their
sale of Transfer Restricted Securities or (ii) if the allocation provided by
clause 8(d)(i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
8(d)(i) above but also the relative fault of the Company and the Guarantors, on
the one hand, and of the Holder, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative fault of the Company and the Guarantors, on the one
hand, and of the Holder, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or such Guarantor, on the one hand, or by
the Holder, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
17
The Company, the Guarantors and each Holder agree that it would not be
just and equitable if contribution pursuant to this Section 8(d) were determined
by pro rata allocation (even if the Holders 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 the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any matter, including any
action that could have given rise to such losses, claims, damages, liabilities
or judgments. Notwithstanding the provisions of this Section 8, no Holder, its
directors, its officers or any Person, if any, who controls such Holder shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the total received by such Holder with respect to the sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities and (ii) 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. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 8(d) are several in
proportion to the respective principal amount of Transfer Restricted Securities
held by each Holder hereunder and not joint.
SECTION 9. RULE 144A AND RULE 144
The Company and each Guarantor agrees with each Holder, for so long as
any Transfer Restricted Securities remain outstanding and during any period in
which the Company or such Guarantor (i) is not subject to Section 13 or 15(d) of
the Exchange Act, to make available, upon request of any Holder, to such Holder
or beneficial owner of Transfer Restricted Securities in connection with any
sale thereof and any prospective purchaser of such Transfer Restricted
Securities designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A under the Act, and (ii) is
subject to Section 13 or 15 (d) of the Exchange Act, to make all filings
required thereby in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144.
SECTION 10. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors acknowledge and agree
that any failure by the Company and/or the Guarantors to comply with their
respective obligations under Sections 3 and 4 hereof may result in material
irreparable injury to the Initial Purchasers or the Holders for which there is
no adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, any Initial
Purchaser or any Holder may obtain such relief as may be required to
specifically enforce the Company's and the Guarantors' obligations under
Sections 3 and 4 hereof. The Company and the Guarantors further agree to waive
the defense in any action for specific performance that a remedy at law would be
adequate.
18
(b) No Inconsistent Agreements. Neither the Company nor any
Guarantor will, on or after the date of this Agreement, enter into any agreement
with respect to its securities that is inconsistent with the rights granted to
the Holders in this Agreement or otherwise conflicts with the provisions hereof.
Neither the Company nor any Guarantor has previously entered into any agreement
granting any registration rights with respect to its securities to any Person
that would require such securities to be included in any Registration Statement
filed hereunder. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's and the Guarantors' securities under any agreement in effect on
the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless (i) in the case of
Section 5 hereof and this Section 10(c)(i), the Company has obtained the written
consent of Holders of all outstanding Transfer Restricted Securities and (ii) in
the case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Company or its Affiliates). Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively to the rights
of Holders whose Transfer Restricted Securities are being tendered pursuant to
the Exchange Offer, and that does not affect directly or indirectly the rights
of other Holders whose Transfer Restricted Securities are not being tendered
pursuant to such Exchange Offer, may be given by the Holders of a majority of
the outstanding principal amount of Transfer Restricted Securities subject to
such Exchange Offer.
(d) Additional Guarantors. The Company shall cause any of its
Restricted Subsidiaries (as defined in the Indenture) that becomes, prior to the
consummation of the Exchange Offer, a Guarantor in accordance with the terms and
provisions of the Indenture to become a party to this Agreement as a Guarantor.
It is understood and agreed that if, prior to the Exchange Offer, a Guarantor
that has executed this Agreement is no longer a Guarantor under the Indenture
pursuant to and in accordance with the provisions of the Indenture, such
Guarantor shall no longer be a Guarantor for purposes of this Agreement.
(e) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent they may
deem such enforcement necessary or advisable to protect its rights or the rights
of Holders hereunder.
(f) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telecopier or air courier
guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to the
Registrar under the Indenture; and
(ii) if to the Company or the Guarantors:
19
General Nutrition Centers, Inc.
300 Sixth Avenue
Pittsburgh, Pennsylvania 15222
Telecopier No.: (412) 338-8900
Attention: Chief Legal Officer
With a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
300 S. Grand Avenue, Suite 3400
Los Angeles, California 90071
Telecopier No.: (213) 687-5600
Attention: Jeffrey Cohen
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(g) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Transfer Restricted
Securities in violation of the terms hereof or of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Transfer Restricted
Securities in any manner, whether by operation of law or otherwise, such
Transfer Restricted Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Transfer Restricted Securities such
Person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such Person shall be entitled to receive the benefits hereof.
(h) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK, INCLUDING WITHOUT LIMITATION
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
20
(k) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(l) Entire Agreement. This Agreement is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GENERAL NUTRITION CENTERS, INC.
By: /s/ Andrew Jhawar
----------------------------------------
Name: Andrew Jhawar
Title: Vice President
GENERAL NUTRITION INVESTMENT COMPANY
GENERAL NUTRITION SALES CORPORATION
GNC (CANADA) HOLDING COMPANY
GENERAL NUTRITION DISTRIBUTION COMPANY
GENERAL NUTRITION GOVERNMENT SERVICES, INC.
GENERAL NUTRITION INTERNATIONAL, INC.
GN INVESTMENT, INC.
GNC, LIMITED
GNC US DELAWARE, INC.
GENERAL NUTRITION SYSTEMS, INC.
INFORMED NUTRITION, INC.
GENERAL NUTRITION CORPORATION
GENERAL NUTRITION DISTRIBUTION, L.P.
GENERAL NUTRITION, INCORPORATED
GNC FRANCHISING, INC.
NUTRICIA MANUFACTURING USA, INC.
GENERAL NUTRITION COMPANIES, INC.
By: /s/ James M. Sander
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Name: James M. Sander
Title: Senior Vice President, Law,
Chief Legal Officer
GNC REGISTRATION RIGHTS AGREEMENT
LEHMAN BROTHERS INC.
By: /s/ Michael Goldberg
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Name: Michael Goldberg
Title: Managing Director
J.P. MORGAN SECURITIES INC.
By: /s/ Graham Conway
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Name: Graham Conway
Title: Vice President
UBS SECURITIES LLC
By: /s/ Amy Fujimoto
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Name: Amy Fujimoto
Title: Director
By: /s/ Mel Tang
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Name: Mel Tang.
Title: Associate Director
GNC REGISTRATION RIGHTS AGREEMENT
SCHEDULE I
General Nutrition Investment Company
General Nutrition Sales Corporation
GNC (Canada) Holding Company
General Nutrition Distribution Company
General Nutrition Government Services, Inc.
General Nutrition International, Inc.
GN Investment, Inc.
GNC, Limited
GNC US Delaware, Inc.
General Nutrition Systems, Inc.
Informed Nutrition, Inc.
General Nutrition Corporation
General Nutrition Distribution, L.P.
General Nutrition, Incorporated
GNC Franchising, Inc.
Nutricia Manufacturing USA, Inc.
General Nutrition Companies, Inc.