EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated as of July 22, 2005 (the
"Agreement") is entered into by and among Quiksilver, Inc., a Delaware
corporation (the "Company"), the guarantors listed in Schedule 1 hereto (the
"Guarantors"), and J.P. Morgan Securities Inc. ("JPMorgan") and Banc of America
Securities LLC, SG Americas Securities, LLC, BNP Paribas Securities Corp.,
Calyon Securities (USA) Inc., Natexis Bleichroeder Inc., CIBC World Markets
Corp. and Piper Jaffray & Co. (together with JPMorgan, the "Initial
Purchasers").
The Company, the Guarantors and the Initial Purchasers are parties to the
Purchase Agreement dated July 14, 2005 (the "Purchase Agreement"), which
provides for the sale by the Company to the Initial Purchasers of $400,000,000
aggregate principal amount of the Company's 6 7/8% Senior Notes due 2015 (the
"Securities"), which will be guaranteed on an unsecured senior basis by each of
the Guarantors. As an inducement to the Initial Purchasers to enter into the
Purchase Agreement, the Company and the Guarantors have agreed to provide to the
Initial Purchasers and their direct and indirect transferees the registration
rights set forth in this Agreement. The execution and delivery of this Agreement
is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the following meanings:
"Additional Guarantor" shall mean any subsidiary of the Company that
executes a Subsidiary Guarantee under the Indenture after the date of this
Agreement.
"Business Day" shall mean any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to be closed.
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and shall also
include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Exchange Dates" shall have the meaning set forth in clause (ii) of the
second paragraph of Section 2(a) hereof.
"Exchange Offer" shall mean the exchange offer by the Company and the
Guarantors of Exchange Securities for Registrable Securities pursuant to Section
2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference therein.
"Exchange Securities" shall mean senior notes issued by the Company and
guaranteed by the Guarantors under the Indenture containing terms substantially
identical to the Securities (except that the Exchange Securities will not be
subject to restrictions on transfer or to any increase in annual interest rate
for failure to comply with this Agreement) and to be offered to Holders of
Securities in exchange for Securities pursuant to the Exchange Offer.
"Guarantors" shall have the meaning set forth in the preamble and shall
also include any Guarantor's successors and any Additional Guarantors.
"Holders" shall mean the Initial Purchasers, for so long as they own any
Registrable Securities, and each of their successors, assigns and direct and
indirect transferees who become owners of Registrable Securities under the
Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the
term "Holders" shall include Participating Broker-Dealers.
"Indenture" shall mean the Indenture relating to the Securities dated as
of July 22, 2005 among the Company, the Guarantors and Wilmington Trust Company,
as trustee, and as the same may be amended or supplemented from time to time in
accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Inspector" shall have the meaning set forth in Section 3(a)(xiii) hereof.
"JPMorgan" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of the outstanding Registrable Securities; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, any Registrable Securities owned
directly or indirectly by the Company or any of its affiliates shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage or amount; and
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provided, further, that if the Company shall issue any additional Securities
under the Indenture prior to consummation of the Exchange Offer or, if
applicable, the effectiveness of any Shelf Registration Statement, such
additional Securities and the Registrable Securities to which this Agreement
relates shall be treated together as one class for purposes of determining
whether the consent or approval of Holders of a specified percentage of
Registrable Securities has been obtained.
"Participating Broker-Dealers" shall have the meaning set forth in Section
4(a) hereof.
"Person" shall mean an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
any document incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the Securities and the related
Subsidiary Guarantees; provided that the Securities shall cease to be
Registrable Securities (i) when a Registration Statement with respect to such
Securities has been declared effective under the Securities Act and such
Securities have been exchanged or disposed of pursuant to such Registration
Statement, (ii) when such Securities are eligible to be sold pursuant to Rule
144(k) (or any similar provision then in force, but not Rule 144A) under the
Securities Act or (iii) when such Securities cease to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company and the Guarantors with this
Agreement, including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees, (ii) all
fees and expenses incurred in connection with compliance with state securities
or blue sky laws (including reasonable fees and disbursements of counsel for any
Underwriters or Holders in connection with blue sky qualification of any
Exchange Securities or Registrable Securities), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus and any amendments or
supplements thereto, any underwriting agreements, securities sales agreements or
other similar agreements and any other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency fees, (v) all fees
and disbursements relating to the qualification of the
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Indenture under applicable securities laws, (vi) the fees and disbursements of
the Trustee and its counsel, (vii) the fees and disbursements of counsel for the
Company and the Guarantors and, in the case of a Shelf Registration Statement,
the reasonable fees and disbursements of one counsel for the Holders (which
counsel shall be selected by the Majority Holders and which counsel may also be
counsel for the Initial Purchasers) and (viii) the fees and disbursements of the
independent registered public accountants of the Company and the Guarantors
(and, if necessary, any other registered public accountant of any subsidiary of
the Company or any Guarantor, or of any business acquired by the Company or any
Guarantor for which financial statements and financial data are or are required
to be included in the Registration Statement), including the expenses of any
special audits or "comfort" letters required by or incident to the performance
of and compliance with this Agreement, but excluding fees and expenses of
counsel to the Underwriters (other than fees and expenses set forth in clause
(ii) above) or the Holders and underwriting discounts and commissions, brokerage
commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company and the Guarantors that covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement and all
amendments and supplements to any such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and any document incorporated by reference
therein.
"SEC" 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.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Effectiveness Period" shall have the meaning set forth in Section
2(b) hereof.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company and the Guarantors that covers all or a portion of the
Registrable Securities (but no other securities unless approved by the Holders
whose Registrable Securities are to be covered by such Shelf Registration
Statement) on an appropriate form under Rule 415 under the Securities Act, or
any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and any document incorporated by reference therein.
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"Subsidiary Guarantee" shall mean the guarantees of the Securities and the
Exchange Securities by the Guarantors under the Indenture, as amended from time
to time.
"Staff" shall mean the staff of the SEC.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended from time to time.
"Trustee" shall mean the trustee with respect to the Securities under the
Indenture.
"Underwriter" shall have the meaning set forth in Section 3(e) hereof.
"Underwritten Offering" shall mean an offering in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
2. Registration Under the Securities Act. (a) To the extent not prohibited
by any applicable law or applicable interpretations of the Staff, the Company
and the Guarantors shall use their commercially reasonable efforts to (i) cause
to be filed an Exchange Offer Registration Statement covering an offer to the
Holders to exchange all the Registrable Securities for Exchange Securities and
(ii) have such Registration Statement remain effective until 180 days after the
closing of the Exchange Offer. The Company and the Guarantors shall commence the
Exchange Offer promptly after the Exchange Offer Registration Statement is
declared effective by the SEC and use their commercially reasonable efforts to
complete the Exchange Offer not later than 60 days after such effective date.
The Company and the Guarantors shall commence the Exchange Offer by
mailing the related Prospectus, appropriate letters of transmittal and other
accompanying documents to each Holder stating, in addition to such other
disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that
all Registrable Securities validly tendered and not properly withdrawn
will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least
20 Business Days from the date such notice is mailed) (the "Exchange
Dates");
(iii) that any Registrable Security not tendered will remain outstanding and
continue to accrue interest but will not retain any rights under this
Agreement;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant
to the Exchange Offer will be required to surrender such Registrable
Security, together with the appropriate letters of transmittal, to the
institution and at the
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address (located in the Borough of Manhattan, The City of New York) and in
the manner specified in the notice, prior to the close of business on the
last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than
the close of business on the last Exchange Date, by sending to the
institution and at the address (located in the Borough of Manhattan, The
City of New York) specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Registrable Securities delivered for exchange and a
statement that such Holder is withdrawing its election to have such
Securities exchanged.
As a condition to participating in the Exchange Offer, a Holder will be
required to represent to the Company and the Guarantors that (i) any Exchange
Securities to be received by it will be acquired in the ordinary course of its
business, (ii) at the time of the commencement of the Exchange Offer it has no
arrangement or understanding with any Person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Securities in
violation of the provisions of the Securities Act, (iii) it is not an
"affiliate" (within the meaning of Rule 405 under the Securities Act) of the
Company or any Guarantor and (iv) if such Holder is a broker-dealer that will
receive Exchange Securities for its own account in exchange for Registrable
Securities that were acquired as a result of market-making or other trading
activities, then such Holder will deliver a Prospectus in connection with any
resale of such Exchange Securities.
As soon as practicable after the last Exchange Date, the Company and the
Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly
tendered and not properly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all
Registrable Securities or portions thereof so accepted for exchange by the
Company and issue, and cause the Trustee to promptly authenticate and
deliver to each Holder, Exchange Securities equal in principal amount to
the principal amount of the Registrable Securities surrendered by such
Holder.
The Company and the Guarantors shall use their commercially reasonable
efforts to complete the Exchange Offer as provided above and shall comply with
the applicable requirements of the Securities Act, the Exchange Act and other
applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate any applicable law or applicable interpretations
of the Staff.
(b) In the event that (i) the Company and the Guarantors determine that
the Exchange Offer Registration provided for in Section 2(a) above is not
available or may not be completed as soon as practicable after the last Exchange
Date because it would
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violate any applicable law or applicable interpretations of the Staff, (ii) the
Exchange Offer is not for any other reason completed on or prior to 225 days
from the date hereof or (iii) any Initial Purchaser shall so request in
connection with any offer or sale of Registrable Securities, the Company and the
Guarantors shall use their commercially reasonable efforts to cause to be filed
as soon as practicable after such determination, date or request, as the case
may be, a Shelf Registration Statement providing for the sale of all the
Registrable Securities by the Holders thereof and to have such Shelf
Registration Statement declared effective by the SEC.
In the event that the Company and the Guarantors are required to file a
Shelf Registration Statement pursuant to clause (iii) of the preceding sentence,
the Company and the Guarantors shall use their commercially reasonable efforts
to file and have declared effective by the SEC both an Exchange Offer
Registration Statement pursuant to Section 2(a) with respect to all Registrable
Securities and a Shelf Registration Statement (which may be a combined
Registration Statement with the Exchange Offer Registration Statement) with
respect to offers and sales of Registrable Securities held by the Initial
Purchasers after completion of the Exchange Offer.
The Company and the Guarantors agree to use their commercially reasonable
efforts to keep the Shelf Registration Statement continuously effective until
the expiration of the period referred to in Rule 144(k) (or any similar rule
then in force, but not Rule 144A) under the Securities Act with respect to the
Registrable Securities or such shorter period that will terminate when all the
Registrable Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement (the "Shelf Effectiveness
Period"). The Company and the Guarantors further agree to supplement or amend
the Shelf Registration Statement and the related Prospectus if 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 by
any other rules and regulations thereunder for shelf registration or if
reasonably requested by a Holder of Registrable Securities with respect to
information relating to such Holder, and to use their commercially reasonable
efforts to cause any such amendment to become effective and such Shelf
Registration Statement and Prospectus to become usable as soon as thereafter
practicable. The Company and the Guarantors agree to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in
connection with any registration pursuant to Section 2(a) or Section 2(b)
hereof. Each Holder shall pay all underwriting discounts and commissions,
brokerage commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to the Shelf
Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC.
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In the event that either the Exchange Offer is not completed or the Shelf
Registration Statement, if required hereby, is not declared effective on or
prior to 225 days from the date hereof, the interest rate on the Registrable
Securities will be increased by 0.50% for the first 90 days and 1.00% thereafter
per annum until the Exchange Offer is completed or the Shelf Registration
Statement, if required hereby, is declared effective by the SEC or the
Securities become freely tradable under the Securities Act.
If the Shelf Registration Statement, if required hereby, has been declared
effective and thereafter either ceases to be effective or the Prospectus
contained therein ceases to be usable at any time during the Shelf Effectiveness
Period, and such failure to remain effective or usable exists for more than 60
days (whether or not consecutive) in any 12-month period, then the interest rate
on the Registrable Securities will be increased by 0.50% for the first 90 days
and 1.00% thereafter per annum commencing on the 61st day in such 12-month
period and ending on such date that the Shelf Registration Statement has again
been declared effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and
the Holders, the Company and the Guarantors acknowledge that any failure by the
Company or the Guarantors to comply with their obligations under Section 2(a)
and Section 2(b) 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, the Initial Purchasers or any Holder may obtain
such relief as may be required to specifically enforce the Company's and the
Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. (a) In connection with their obligations
pursuant to Section 2(a) and Section 2(b) hereof, the Company and the Guarantors
shall promptly:
(i) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected by
the Company and the Guarantors, (y) shall, in the case of a Shelf Registration,
be available for the sale of the Registrable Securities by the Holders thereof
and (z) shall comply as to form in all material respects with the requirements
of the applicable form and include all financial statements required by the SEC
to be filed therewith; and use their commercially reasonable efforts to cause
such Registration Statement to become effective and remain effective for the
applicable period in accordance with Section 2 hereof;
(ii) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period in accordance with
Section 2 hereof and cause each Prospectus to be supplemented by any required
prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424
under the
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Securities Act; and keep each Prospectus current during the period described in
Section 4(3) of, and Rule 174 under, the Securities Act that is applicable to
transactions by brokers or dealers with respect to the Registrable Securities or
Exchange Securities;
(iii) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Initial Purchasers, to counsel for
such Holders and to each Underwriter of an Underwritten Offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus, including
each preliminary Prospectus, and any amendment or supplement thereto, in order
to facilitate the sale or other disposition of the Registrable Securities
thereunder; and the Company and the Guarantors consent to the use of such
Prospectus and any amendment or supplement thereto in accordance with applicable
law by each of the Holders of Registrable Securities and any such Underwriters
in connection with the offering and sale of the Registrable Securities covered
by and in the manner described in such Prospectus or any amendment or supplement
thereto in accordance with applicable law;
(iv) use their commercially reasonable efforts to register or qualify the
Registrable Securities under all applicable state securities or blue sky laws of
such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC; cooperate
with such Holders in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.; and do any and all other acts
and things that may be reasonably necessary or advisable to enable each Holder
to complete the disposition in each such jurisdiction of the Registrable
Securities owned by such Holder; provided that neither the Company nor any
Guarantor shall be required to (1) qualify as a foreign corporation or other
entity or as a dealer in securities in any such jurisdiction where it would not
otherwise be required to so qualify, (2) file any general consent to service of
process in any such jurisdiction (other than as a result of the sale of the
Registrable Securities) or (3) subject itself to taxation in any such
jurisdiction if it is not so subject;
(v) notify counsel for the Initial Purchasers and, in the case of a Shelf
Registration, notify each Holder of Registrable Securities and counsel for such
Holders promptly and, if requested by any such Holder or counsel, confirm such
advice in writing (1) when a Registration Statement has become effective and
when any post-effective amendment thereto has been filed and becomes effective,
(2) of any request by the SEC or any state securities authority for amendments
and supplements to a Registration Statement and Prospectus or for additional
information after the Registration Statement has become effective, (3) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (4) if, between the effective date of a Shelf
Registration Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of the Company or any
Guarantor contained in any underwriting agreement, securities sales agreement or
other similar agreement, if any, relating to an offering of such Registrable
Securities cease to be true and correct in all material respects or if the
Company or any
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9
Guarantor receives any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose, (5) of the happening of any event
during the period a Shelf Registration Statement is effective that makes any
statement made in such Shelf Registration Statement or the related Prospectus
untrue in any material respect or that requires the making of any changes in
such Shelf Registration Statement or Prospectus in order to make the statements
therein not misleading and (6) of any determination by the Company or any
Guarantor that a post-effective amendment to a Registration Statement would be
appropriate;
(vi) use their commercially reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at the
earliest possible moment and provide immediate notice to each Holder of the
withdrawal of any such order;
(vii) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without any
documents incorporated therein by reference or exhibits thereto, unless
requested);
(viii) in the case of a Shelf Registration, cooperate with the Holders of
Registrable Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends and enable such Registrable Securities to be issued in such
denominations and registered in such names (consistent with the provisions of
the Indenture) as such Holders may reasonably request at least one Business Day
prior to the closing of any sale of Registrable Securities;
(ix) in the case of a Shelf Registration, upon the occurrence of any event
contemplated by Section 3(a)(v)(5) hereof, use their commercially reasonable
efforts to prepare and file with the SEC a supplement or post-effective
amendment to such Shelf Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to purchasers of the Registrable Securities,
such Prospectus will not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and the Company
and the Guarantors shall notify the Holders of Registrable Securities to suspend
use of the Prospectus as promptly as practicable after the occurrence of such an
event, and such Holders hereby agree to suspend use of the Prospectus until the
Company and the Guarantors have amended or supplemented the Prospectus to
correct such misstatement or omission;
(x) a reasonable time prior to the filing of any Registration Statement,
any Prospectus, any amendment to a Registration Statement or amendment or
supplement to a Prospectus or of any document that is to be incorporated by
reference into a Registration Statement or a Prospectus after initial filing of
a Registration Statement,
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provide copies of such document to the Initial Purchasers and their counsel
(and, in the case of a Shelf Registration Statement, to the Holders of
Registrable Securities and their counsel) and make such of the representatives
of the Company and the Guarantors as shall be reasonably requested by the
Initial Purchasers or their counsel (and, in the case of a Shelf Registration
Statement, the Holders of Registrable Securities or their counsel) available for
discussion of such document; and the Company and the Guarantors shall not, at
any time after initial filing of a Registration Statement, file any Prospectus,
any amendment of or supplement to a Registration Statement or a Prospectus, or
any document that is to be incorporated by reference into a Registration
Statement or a Prospectus, of which the Initial Purchasers and their counsel
(and, in the case of a Shelf Registration Statement, the Holders of Registrable
Securities and their counsel) shall not have previously been advised and
furnished a copy or to which the Initial Purchasers or their counsel (and, in
the case of a Shelf Registration Statement, the Holders of Registrable
Securities or their counsel) shall object;
(xi) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement;
(xii) cause the Indenture to be qualified under the Trust Indenture Act in
connection with the registration of the Exchange Securities or Registrable
Securities, as the case may be; cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the Indenture to be
so qualified in accordance with the terms of the Trust Indenture Act; and
execute, and use their commercially reasonable efforts to cause the Trustee to
execute, all documents as may be required to effect such changes and all other
forms and documents required to be filed with the SEC to enable the Indenture to
be so qualified in a timely manner;
(xiii) in the case of a Shelf Registration, make available for inspection
by a representative of the Holders of the Registrable Securities (an
"Inspector"), any Underwriter participating in any disposition pursuant to such
Shelf Registration Statement, any attorneys and accountants designated by the
Holders of Registrable Securities and any attorneys and accountants designated
by such Underwriter, at reasonable times and in a reasonable manner, all
pertinent financial and other records, documents and properties of the Company
and the Guarantors, and cause the respective officers, directors and employees
of the Company and the Guarantors to supply all information reasonably requested
by any such Inspector, Underwriter, attorney or accountant in connection with a
Shelf Registration Statement; provided that if any such information is
identified by the Company or any Guarantor as being confidential or proprietary,
each Person receiving such information shall take such actions as are reasonably
necessary to protect the confidentiality of such information to the extent such
action is otherwise not inconsistent with, an impairment of or in derogation of
the rights and interests of any Inspector, Holder or Underwriter);
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(xiv) in the case of a Shelf Registration, use their commercially
reasonable efforts to cause all Registrable Securities to be listed on any
securities exchange or any automated quotation system on which similar
securities issued or guaranteed by the Company or any Guarantor are then listed
if requested by the Majority Holders, to the extent such Registrable Securities
satisfy applicable listing requirements;
(xv) if reasonably requested by any Holder of Registrable Securities
covered by a Shelf Registration Statement, promptly include in a Prospectus
supplement or post-effective amendment such information with respect to such
Holder as such Holder reasonably requests to be included therein and make all
required filings of such Prospectus supplement or such post-effective amendment
as soon as the Company has received notification of the matters to be so
included in such filing;
(xvi) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith (including
those requested by the Holders of a majority in principal amount of the
Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities including, but not limited to, an
Underwritten Offering and in such connection, (1) to the extent possible, make
such representations and warranties to the Holders and any Underwriters of such
Registrable Securities with respect to the business of the Company and its
subsidiaries and the Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by reference, if any, in each
case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested, (2) obtain opinions of counsel to the Company and the Guarantors
(which counsel and opinions, in form, scope and substance, shall be reasonably
satisfactory to the Holders and such Underwriters and their respective counsel)
addressed to each selling Holder and Underwriter of Registrable Securities,
covering the matters customarily covered in opinions requested in underwritten
offerings, (3) obtain "comfort" letters from the independent registered public
accountants of the Company and the Guarantors (and, if necessary, any other
registered public accountant of any subsidiary of the Company or any Guarantor,
or of any business acquired by the Company or any Guarantor for which financial
statements and financial data are or are required to be included in the
Registration Statement) addressed to each selling Holder and Underwriter of
Registrable Securities, such letters to be in customary form and covering
matters of the type customarily covered in "comfort" letters in connection with
underwritten offerings and (4) deliver such documents and certificates as may be
reasonably requested by the Holders of a majority in principal amount of the
Registrable Securities being sold or the Underwriters, and which are customarily
delivered in underwritten offerings, to evidence the continued validity of the
representations and warranties of the Company and the Guarantors made pursuant
to clause (1) above and to evidence compliance with any customary conditions
contained in an underwriting agreement; and
(xvii) so long as any Registrable Securities remain outstanding, cause
each Additional Guarantor at the time such Additional Guarantor executes a
Subsidiary Guarantee under the Indenture to execute a counterpart to this
Agreement in the form
Registration Rights Agreement
12
attached hereto as Annex A and to deliver such counterpart, to the Initial
Purchasers no later than 10 Business Days following the execution thereof.
(b) In the case of a Shelf Registration Statement, the Company may require
each Holder of Registrable Securities to furnish to the Company such information
regarding such Holder and the proposed disposition by such Holder of such
Registrable Securities as the Company and the Guarantors may from time to time
reasonably request in writing.
(c) In the case of a Shelf Registration Statement, each Holder of
Registrable Securities agrees that, upon receipt of any notice from the Company
and the Guarantors of the happening of any event of the kind described in
Section 3(a)(v)(3) or 3(a)(v)(5) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the Shelf Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(a)(ix) hereof and, if so directed
by the Company and the Guarantors, such Holder will deliver to the Company and
the Guarantors all copies in its possession, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Registrable
Securities that is current at the time of receipt of such notice.
(d) If the Company and the Guarantors shall give any notice pursuant to
Section 3(c) hereof to suspend the disposition of Registrable Securities
pursuant to a Shelf Registration Statement, the Company and the Guarantors shall
extend the period during which such Shelf Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days during the
period from and including the date of the giving of such notice to and including
the date when the Holders of such Registrable Securities shall have received
copies of the supplemented or amended Prospectus necessary to resume such
dispositions. The Company and the Guarantors may give any such notice only twice
during any 365-day period and any such suspensions shall not exceed 30 days for
each suspension and there shall not be more than two suspensions in effect
during any 365-day period.
(e) The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment bank or
investment banks and manager or managers (each an "Underwriter") that will
administer the offering will be selected by the Holders of a majority in
principal amount of the Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer. (a) The Staff has
taken the position that any broker-dealer that receives Exchange Securities for
its own account in the Exchange Offer in exchange for Securities that were
acquired by such broker-dealer as a result of market-making or other trading
activities (a "Participating Broker-Dealer") may be deemed to be an
"underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Securities.
Registration Rights Agreement
13
The Company and the Guarantors understand that it is the Staff's position
that if the Prospectus contained in the Exchange Offer Registration Statement
includes a plan of distribution containing a statement to the above effect and
the means by which Participating Broker-Dealers may resell the Exchange
Securities, without naming the Participating Broker-Dealers or specifying the
amount of Exchange Securities owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery obligation
under the Securities Act in connection with resales of Exchange Securities for
their own accounts, so long as the Prospectus otherwise meets the requirements
of the Securities Act.
(b) In light of the above, and notwithstanding the other provisions of
this Agreement, the Company and the Guarantors agree to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement for a period
of up to 180 days after the last Exchange Date (as such period may be extended
pursuant to Section 3(d) of this Agreement), if requested by the Initial
Purchasers or by one or more Participating Broker-Dealers, in order to expedite
or facilitate the disposition of any Exchange Securities by Participating
Broker-Dealers consistent with the positions of the Staff recited in Section
4(a) above. The Company and the Guarantors further agree that Participating
Broker-Dealers shall be authorized to deliver such Prospectus during such period
in connection with the resales contemplated by this Section 4.
(c) The Initial Purchasers shall have no liability to the Company, any
Guarantor or any Holder with respect to any request that they may make pursuant
to Section 4(b) above.
5. Indemnification and Contribution. (a) The Company and each Guarantor,
jointly and severally, agree to indemnify and hold harmless each Initial
Purchaser and each Holder, their respective affiliates, directors and officers
and each Person, if any, who controls any Initial Purchaser or any Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, legal fees and other expenses reasonably
incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), that arise out of, or are
based upon, any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or any Prospectus or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, (A) any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to any Initial
Purchaser or information relating to any Holder furnished to the Company in
writing through JPMorgan or any selling Holder expressly for use therein or (B)
any untrue statement or omission or alleged untrue statement or omission that
was contained or made in any related preliminary Prospectus, if both (1) a copy
of the final Prospectus was not sent or given by such Initial Purchaser or
Holder to such Person
Registration Rights Agreement
14
asserting any such loss, claim, damage or liability in any case where such
delivery is required by the Securities Act on or prior to the written
confirmation of the sale of such Securities to such Person and (2) the untrue
statement in or omission from the related preliminary Prospectus was corrected
in the final Prospectus, unless, in either case, such failure to deliver the
final Prospectus was a result of non-compliance by the Company with the
provisions of Section 3 hereof. In connection with any Underwritten Offering
permitted by Section 3, the Company and the Guarantors, jointly and severally,
will also indemnify the Underwriters, if any, selling brokers, dealers and
similar securities industry professionals participating in the distribution,
their respective affiliates and each Person who controls such Persons (within
the meaning of the Securities Act and the Exchange Act) to the same extent as
provided above with respect to the indemnification of the Holders, if requested
in connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, the Guarantors, the Initial Purchasers and the other
selling Holders, the directors of the Company and the Guarantors, each officer
of the Company and the Guarantors who signed the Registration Statement and each
Person, if any, who controls the Company, the Guarantors, any Initial Purchaser
and any other selling Holder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the indemnity set
forth in paragraph (a) above, but only with respect to any losses, claims,
damages or liabilities that arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to such Holder furnished to
the Company in writing by such Holder expressly for use in any Registration
Statement and any Prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such Person (the "Indemnified Person") shall
promptly notify the Person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 5 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 5. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 5
that the Indemnifying Person may designate in such proceeding and shall pay the
fees and expenses of such counsel related to such proceeding, as incurred. In
any such proceeding, any Indemnified Person shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have
Registration Rights Agreement
15
mutually agreed to the contrary; (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person; (iii) the Indemnified Person shall have reasonably concluded that there
may be legal defenses available to it that are different from or in addition to
those available to the Indemnifying Person; or (iv) the named parties in any
such proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm (x) for any Initial Purchaser, its affiliates, directors and
officers and any control Persons of such Initial Purchaser shall be designated
in writing by JPMorgan, (y) for any Holder, its directors and officers and any
control Persons of such Holder shall be designated in writing by the Majority
Holders and (z) in all other cases shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify each Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by this paragraph, the Indemnifying Person
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by the Indemnifying Person of such request and (ii) the Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall,
without the written consent of the Indemnified Person, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified Person
is or could have been a party and indemnification could have been sought
hereunder by such Indemnified Person, unless such settlement (A) includes an
unconditional release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (B) does not include any
statement as to or any admission of fault, culpability or a failure to act by or
on behalf of any Indemnified Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors from the offering of the Securities and the Exchange
Securities, on the one hand, and by the Holders from receiving Securities or
Exchange Securities registered under the Securities Act, on the
Registration Rights Agreement
16
other hand, or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) but also the relative fault of the
Company and the Guarantors on the one hand and the Holders on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Guarantors on the one
hand and the Holders on the other 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 and the Guarantors or by the Holders and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company, the Guarantors and the Holders agree that it would not be
just and equitable if contribution pursuant to this Section 5 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 that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Person in connection with any such
action or claim. Notwithstanding the provisions of this Section 5, in no event
shall a Holder be required to contribute any amount in excess of the amount by
which the total price at which the Securities or Exchange Securities sold by
such Holder exceeds the amount of any damages that 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 Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(f) The remedies provided for in this Section 5 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers or any Holder or any Person controlling any Initial
Purchaser or any Holder, or by or on behalf of the Company or the Guarantors or
the officers or directors of or any Person controlling the Company or the
Guarantors, (iii) acceptance of any of the Exchange Securities and (iv) any sale
of Registrable Securities pursuant to a Shelf Registration Statement.
Registration Rights Agreement
17
6. General.
(a) No Inconsistent Agreements. The Company and the Guarantors represent,
warrant and agree that (i) 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 any other outstanding securities issued or guaranteed by the Company
or any Guarantor under any other agreement and (ii) neither the Company nor any
Guarantor has entered into, or on or after the date of this Agreement will enter
into, any agreement that is inconsistent with the rights granted to the Holders
of Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company and the Guarantors have obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or consent; provided that no amendment, modification, supplement, waiver
or consent to any departure from the provisions of Section 5 hereof shall be
effective as against any Holder of Registrable Securities unless consented to in
writing by such Holder. Any amendments, modifications, supplements, waivers or
consents pursuant to this Section 6(b) shall be by a writing executed by each of
the parties hereto.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, facsimile, telecopier, or any courier guaranteeing
overnight delivery (i) if to a Holder, at the most current address given by such
Holder to the Company by means of a notice given in accordance with the
provisions of this Section 6(c), which address initially is, with respect to the
Initial Purchasers, the address set forth in the Purchase Agreement; (ii) if to
the Company and the Guarantors, initially at the Company's address set forth in
the Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 6(c); and (iii) to such
other persons at their respective addresses as provided in the Purchase
Agreement and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 6(c). 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 answered back, if telexed; when receipt
is acknowledged, if telecopied or sent via facsimile; 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.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees 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 Registrable Securities
in violation of the
Registration Rights Agreement
18
terms of the Purchase Agreement or the Indenture. If any transferee of any
Holder shall acquire Registrable Securities in any manner, whether by operation
of law or otherwise, such Registrable Securities shall be held subject to all
the terms of this Agreement, and by taking and holding such Registrable
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 and such
Person shall be entitled to receive the benefits hereof. The Initial Purchasers
(in their capacity as Initial Purchasers) shall have no liability or obligation
to the Company or the Guarantors with respect to any failure by a Holder to
comply with, or any breach by any Holder of, any of the obligations of such
Holder under this Agreement.
(e) Third Party Beneficiaries. Each Holder shall be a third party
beneficiary 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 it deems
such enforcement necessary or advisable to protect its rights or the rights of
other Holders hereunder.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience of
reference only, are not a part of this Agreement and shall not limit or
otherwise affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(j) Miscellaneous. This Agreement contains the entire agreement between
the parties relating to the subject matter hereof and supersedes all oral
statements and prior writings with respect thereto. If any term, provision,
covenant or restriction contained in this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable or against public
policy, the remainder of the terms, provisions, covenants and restrictions
contained herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. The Company, the Guarantors and the Initial
Purchasers shall endeavor in good faith negotiations to replace the invalid,
void or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, void or unenforceable
provisions.
[Signature Page Follows]
Registration Rights Agreement
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
QUIKSILVER, INC.
By _________________________
Title:
DC SHOES, INC.
By _________________________
Title:
FIDRA, INC.
By _________________________
Title:
HAWK DESIGNS, INC.
By _________________________
Title:
MERVIN MANUFACTURING, INC.
By _________________________
Title:
QS RETAIL, INC.
By _________________________
Title:
Registration Rights Agreement
20
QS WHOLESALE, INC.
By _________________________
Title:
QUIKSILVER AMERICAS, INC.
By _________________________
Title:
Confirmed and accepted as of the date first above written:
J.P. MORGAN SECURITIES INC.
For itself and on behalf of the
several Initial Purchasers
By___________________________
Authorized Signatory
Registration Rights Agreement
21
Annex A
Counterpart to Registration Rights Agreement
The undersigned hereby absolutely, unconditionally and irrevocably agrees
(as a "Guarantor") to use all commercially reasonable efforts to include its
Subsidiary Guarantee in any Registration Statement required to be filed by the
Company and the Guarantors pursuant to the Registration Rights Agreement, dated
as of July 22, 2005 (the "Registration Rights Agreement"), by and among
Quiksilver, Inc., a Delaware corporation, the guarantors party thereto and J.P.
Morgan Securities Inc., on behalf of itself and the other initial purchasers; to
use all commercially reasonable efforts to cause such Registration Statement to
become effective as provided in the Registration Rights Agreement; and to
otherwise be bound, on a joint and several basis with the other Guarantors party
thereto, by the terms and provisions of the Registration Rights Agreement.
Capitalized terms used herein but not defined herein shall have the meanings
assigned to such terms in the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Counterpart as of
_______________.
[GUARANTOR]
By: _____________________________
Name:
Title:
Schedule 1
QUIKSILVER, INC.
NAMES AND JURISDICTIONS OF GUARANTORS
Subsidiary Name Jurisdiction
- --------------- ------------
DC Shoes, Inc. California
Fidra, Inc. California
Hawk Designs, Inc. California
Mervin Manufacturing, Inc. California
QS Retail, Inc. California
QS Wholesale, Inc. California
Quiksilver Americas, Inc. California