EXHIBIT 4.2
$225,000,000
ROADWAY CORPORATION
ROADWAY EXPRESS, INC., GUARANTOR
ROADWAY EXPRESS INTERNATIONAL, INC., GUARANTOR
ROADWAY REVERSE LOGISTICS, INC., GUARANTOR
ARNOLD INDUSTRIES, INC., GUARANTOR
NEW PENN MOTOR EXPRESS, INC., GUARANTOR
ARNOLD TRANSPORTATION SERVICES, INC., GUARANTOR
8 1/4% SENIOR NOTES DUE DECEMBER 1, 2008
REGISTRATION RIGHTS AGREEMENT
-----------------------------
November 30, 2001
Credit Suisse First Boston Corporation
BMO Nesbitt Burns Corp.
NatCity Investments, Inc.
ABN AMRO Financial Services, Inc.
BNP Paribas Securities Corp.
Fleet Securities, Inc.
SunTrust Capital Markets, Inc.
First Union Securities, Inc.
SBK Brooks Investment Corp.
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010-3629
Dear Sirs:
Roadway Corporation, a Delaware corporation (the "COMPANY"), in
connection with its acquisition of Arnold Industries, Inc. ("ARNOLD"), proposes
to issue and sell to Credit Suisse First Boston Corporation, BMO Nesbitt Burns
Corp., NatCity Investments, Inc., ABN AMRO Financial Services, Inc., BNP Paribas
Securities Corp., Fleet Securities, Inc., SunTrust Capital Markets, Inc., First
Union Securities, Inc. and SBK Brooks Investment Corp. (collectively, the
"INITIAL PURCHASERS"), upon the terms set forth in a purchase agreement dated
November 27, 2001 (the "PURCHASE AGREEMENT"), $225,000,000 aggregate principal
amount of its 81/4% Senior Notes Due December 1, 2008 (the "INITIAL
SECURITIES"). The Initial Securities will be issued pursuant to an Indenture,
dated the date hereof (the "INDENTURE"), among the Company, the Guarantors named
therein and SunTrust Bank, as trustee (the "TRUSTEE"). The Company's obligations
under the Indenture and the Initial Securities will be unconditionally
guaranteed by each subsidiary of the Company (the "GUARANTORS") that guarantees
any of the Company's other debt obligations. The initial Guarantors will be
Roadway Express, Inc., Roadway Express International, Inc., Roadway Reverse
Logistics, Inc., Arnold, Arnold Transportation Services, Inc. and New Penn Motor
Express, Inc. The Company's obligations under the Indenture and the Initial
Securities will be secured by a lien on the capital stock of those of the
Company's subsidiaries a lien on the capital stock of which secures the
obligations of the Company under its credit facility entered into the date
hereof pursuant to a Pledge, Security and Intercreditor Agreement dated the date
hereof. As an inducement to the Initial Purchasers to enter into the Purchase
Agreement, the Company agrees with the Initial Purchasers, for the benefit of
the Initial Purchasers and the holders of the Securities (as defined below)
(collectively the "HOLDERS"), as follows:
1. Registered Exchange Offer. Unless not permitted by applicable law
(after the Company has complied with the ultimate paragraph of this Section 1),
the Company and the Guarantors shall prepare and, not later than 90 days (such
90th day being a "FILING DEADLINE") after the date on which the Initial
Purchasers purchase the Initial Securities pursuant to the Purchase Agreement
(the "CLOSING DATE"), file with the Securities and Exchange Commission (the
"COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION
STATEMENT") on an appropriate form under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED
EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in
Section 6 hereof), who are not prohibited by any law or policy of the Commission
from participating in the Registered Exchange Offer, to issue and deliver to
such Holders, in exchange for the Initial Securities, a like aggregate principal
amount of debt securities of the Company issued under the Indenture, identical
in all material respects to the Initial Securities and registered under the
Securities Act (the "EXCHANGE SECURITIES"). The Company and the Guarantors shall
use their respective best efforts to (i) cause such Exchange Offer Registration
Statement to become effective under the Securities Act within 180 days after the
Closing Date (such 180th day being an "EFFECTIVENESS DEADLINE") and (ii) keep
the Exchange Offer Registration Statement effective for not less than 20
business days (or longer, if required by applicable law) after the date notice
of the Registered Exchange Offer is mailed to the Holders (such period being
called the "EXCHANGE OFFER REGISTRATION PERIOD").
If the Company and the Guarantors commence the Registered Exchange
Offer, the Company (i) will be entitled to consummate the Registered Exchange
Offer 20 business days after such commencement (provided that the Company has
accepted all the Initial Securities theretofore validly tendered in accordance
with the terms of the Registered Exchange Offer) and (ii) will be required to
consummate the Registered Exchange Offer no later than 30 business days after
the date on which the Exchange Offer Registration Statement is declared
effective (such 30th day being the "CONSUMMATION DEADLINE"); provided, however,
that if the Company is required by applicable law to keep the Exchange Offer
Registration Statement effective for more than 30 days in accordance with clause
(ii) in the preceding paragraph, the Consummation Deadline shall be
automatically extended by such number of days exceeding 30 for which the Company
is required by applicable law to keep the Exchange Offer Registration Statement
effective.
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder of Transfer Restricted Securities electing to exchange the
Initial Securities for Exchange Securities (assuming that such Holder is not an
affiliate of the Company within the meaning of the Securities Act, acquires the
Exchange Securities in the ordinary course of such Holder's business and has no
arrangements or understandings with any person to participate in and is not
participating in the distribution of the Exchange Securities and is not
prohibited by any law or policy of the Commission from participating in the
Registered Exchange Offer) to trade such Exchange Securities from and after
their receipt without any limitations or restrictions under the Securities Act
and without material restrictions under the securities laws of the several
states of the United States.
The Company and the Guarantors acknowledge that, pursuant to current
interpretations by the Commission's staff of Section 5 of the Securities Act, in
the absence of an applicable exemption therefrom, (i) each Holder which is a
broker-dealer electing to exchange Initial Securities, acquired for its own
account as a result of market-making activities or other trading activities, for
Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a
prospectus containing, among other things, the information substantially as set
forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange
Offer Procedures" or similarly titled section and the "Purpose of the Exchange
Offer" or similarly titled section, and (c) Annex C hereto in the "Plan of
Distribution" section of such prospectus in connection with a sale of any such
Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell
Securities (as defined below) acquired in exchange for Initial Securities
constituting any portion of an unsold allotment, is required to deliver a
prospectus containing the information required by Items 507 or 508 of Regulation
S-K under the Securities Act, as applicable, in connection with such sale.
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The Company and the Guarantors shall use their respective best efforts
to keep the Exchange Offer Registration Statement effective and to amend and
supplement the prospectus contained therein, in order to permit such prospectus
to be lawfully delivered by all persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such persons must
comply with such requirements in order to resell the Exchange Securities;
provided, however, that (i) in the case where such prospectus and any amendment
or supplement thereto must be delivered by an Exchanging Dealer or an Initial
Purchaser, such period shall be the lesser of 180 days after the consummation of
the Registered Exchange Offer and the date on which all Exchanging Dealers and
the Initial Purchasers have sold all Exchange Securities held by them (unless
such period is extended pursuant to Section 3(j) below) and (ii) the Company and
the Guarantors shall make such prospectus and any amendment or supplement
thereto available to any broker-dealer for use in connection with any resale of
any Exchange Securities for a period of not less than 180 days after the
consummation of the Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Initial Securities acquired by it as part of its initial
distribution, the Company, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver to
such Initial Purchaser upon the written request of such Initial Purchaser, in
exchange (the "Private Exchange") for the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Company
issued under the Indenture and identical in all material respects to the Initial
Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the
Exchange Securities and the Private Exchange Securities are herein collectively
called the "SECURITIES".
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than
20 business days (or longer, if required by applicable law) after the
date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered
Exchange Offer, which may be the Trustee or an affiliate of the
Trustee;
(d) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last business day
on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer
or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Initial Securities validly
tendered and not withdrawn pursuant to the Registered Exchange Offer
and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial
Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to
each Holder of the Initial Securities, Exchange Securities or Private
Exchange Securities, as the case may be, equal in principal amount to
the Initial Securities of such Holder so accepted for exchange.
Interest on each Exchange Security and Private Exchange Security issued
pursuant to the Registered Exchange Offer and in the Private Exchange will
accrue from the last interest payment date on
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which interest was paid on the Initial Securities surrendered in exchange
therefor or, if no interest has been paid on the Initial Securities, from the
date of original issue of the Initial Securities.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company and the Guarantors that at the time of the
consummation of the Registered Exchange Offer (i) any Exchange Securities
received by such Holder will be acquired in the ordinary course of business,
(ii) such Holder will have no arrangements or understanding with any person to
participate in the distribution of the Initial Securities or the Exchange
Securities within the meaning of the Securities Act, (iii) such Holder is not an
"affiliate," as defined in Rule 405 under the Securities Act, of the Company or
any Guarantor or, if it is an affiliate, such Holder will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable, (iv) if such Holder is not a broker-dealer, that it is not
engaged in, and does not intend to engage in, the distribution of the Exchange
Securities and (v) if such Holder is a broker-dealer, that it will receive
Exchange Securities for its own account in exchange for Initial Securities that
were acquired as a result of market-making activities or other trading
activities and that it will be required to acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities.
Notwithstanding any other provisions hereof, the Company and the
Guarantors will ensure that (i) any Exchange Offer Registration Statement and
any amendment thereto and any prospectus forming part thereof and any supplement
thereto complies in all material respects with the applicable requirements of
the Securities Act and the rules and regulations thereunder, (ii) any Exchange
Offer Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any prospectus forming part of any Exchange
Offer Registration Statement, and any supplement to such prospectus, does not
include an untrue statement of a material fact or omit to state 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.
If following the date hereof there has been announced a change in
Commission policy with respect to exchange offers that in the reasonable opinion
of counsel to the Company and the Guarantors raises a substantial question as to
whether the Registered Exchange Offer is permitted by applicable federal law,
the Company and the Guarantors will seek a no-action letter or other favorable
decision from the Commission allowing the Company to consummate the Registered
Exchange Offer. The Company and the Guarantors will pursue the issuance of such
a decision to the Commission staff level. In connection with the foregoing, the
Company and the Guarantors will take all such other actions as may be reasonably
requested by the Commission or otherwise required in connection with the
issuance of such decision, including without limitation (i) participating in
telephonic conferences with the Commission, (ii) delivering to the Commission
staff an analysis prepared by counsel to the Company and the Guarantors setting
forth the legal bases, if any, upon which such counsel has concluded that the
Registered Exchange Offer should be permitted and (iii) diligently pursuing a
resolution (which need not be favorable) by the Commission staff.
Notwithstanding the foregoing, if at the time the Company is required to
commence or consummate the Registered Exchange Offer such efforts would, in the
reasonable opinion of counsel to the Company and the Guarantors, be futile, the
Company will not be obligated to seek such a no-action letter or other favorable
decision from the Commission.
2. Shelf Registration. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Company
and the Guarantors are not permitted to effect a Registered Exchange Offer, as
contemplated by Section 1 hereof, (ii) the Registered Exchange Offer is not
consummated by the 180th day after the Closing Date, (iii) any Initial Purchaser
so requests in a written notice delivered to the Company with respect to the
Initial Securities (or the Private Exchange Securities) not eligible to be
exchanged for Exchange Securities in the Registered Exchange Offer and held by
it following consummation of the Registered Exchange Offer or (iv) any Holder
(other than an Exchanging Dealer) is not eligible to participate in the
Registered Exchange Offer or, in the case of any Holder (other than an
Exchanging Dealer) that participates in the Registered Exchange Offer, such
Holder does not receive freely tradeable Exchange Securities upon consummation
of the Registered Exchange Offer and any such Holder so requests in a written
notice delivered to the Company, the Company and the Guarantors
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shall take the following actions (the date on which any of the conditions
described in the foregoing clauses (i) through (iv) occur, including in the case
of clauses (iii) or (iv) the receipt of the required notice, being a "TRIGGER
DATE"):
(a) The Company and the Guarantors shall promptly (but in no
event more than 45 days after the Trigger Date (such 45th day being a
"FILING DEADLINE")) file with the Commission and thereafter use their
respective best efforts to cause to be declared effective no later than
135 days after the Trigger Date (such 135th day being an "EFFECTIVENESS
DEADLINE") a registration statement (the "SHELF REGISTRATION STATEMENT"
and, together with the Exchange Offer Registration Statement, a
"REGISTRATION STATEMENT") on an appropriate form under the Securities
Act relating to the offer and sale of the Transfer Restricted
Securities by the Holders thereof from time to time in accordance with
the methods of distribution set forth in the Shelf Registration
Statement and Rule 415 under the Securities Act (hereinafter, the
"SHELF REGISTRATION"); PROVIDED, HOWEVER, that no Holder (other than an
Initial Purchaser) shall be entitled to have the Securities held by it
covered by such Shelf Registration Statement unless such Holder agrees
in writing to be bound by all the provisions of this Agreement
applicable to such Holder.
(b) The Company and the Guarantors shall use their respective
reasonable efforts to keep the Shelf Registration Statement
continuously effective in order to permit the prospectus included
therein to be lawfully delivered by the Holders of the relevant
Securities, for a period of two years (or for such longer period if
extended pursuant to Section 3(j) below) from the date of its
effectiveness, for a period of one year from the date of its
effectiveness if such Shelf Registration Statement is filed at the
request of any Initial Purchaser, or such shorter period that will
terminate when all the Transfer Restricted Securities covered by the
Shelf Registration Statement (i) have been sold pursuant thereto or
(ii) are no longer "restricted securities" (as defined in Rule 144
under the Securities Act, or any successor rule thereof). The Company
and the Guarantors shall be deemed not to have used their reasonable
efforts to keep the Shelf Registration Statement effective during the
requisite period if any of them voluntarily takes any action that would
result in Holders of Securities covered thereby not being able to offer
and sell such Securities during that period, unless such action is
required by applicable law.
(c) Notwithstanding any other provisions of this Agreement to
the contrary, the Company and the Guarantors shall cause the Shelf
Registration Statement and the related prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration
Statement, amendment or supplement, (i) to comply in all material
respects with the applicable requirements of the Securities Act and the
rules and regulations of the Commission and (ii) not to contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
3. Registration Procedures. In connection with any Shelf Registration
contemplated by Section 2 hereof and, to the extent applicable, any Registered
Exchange Offer contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Company and the Guarantors shall (i) furnish to each
Initial Purchaser, prior to the filing thereof with the Commission, a
copy of the Registration Statement and each amendment thereof and each
supplement, if any, to the prospectus included therein and, in the
event that an Initial Purchaser (with respect to any portion of an
unsold allotment from the original offering of Initial Securities) is
participating in the Registered Exchange Offer or the Shelf
Registration Statement, the Company and the Guarantors shall use their
respective best efforts to reflect in each such document, when so filed
with the Commission, such comments as such Initial Purchaser reasonably
may propose within a reasonable time after receiving any such document;
(ii) include the information substantially as set forth (A) in Annex A
hereto on the cover, (B) in Annex B hereto in the "Exchange Offer
Procedures" or similarly titled section and the "Purpose of the
Exchange Offer" or similarly titled section and (C) in Annex C hereto
in the "Plan of Distribution" section, of the prospectus forming a part
of the Exchange Offer Registration
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Statement and include the information substantially as set forth in
Annex D hereto in the Letter of Transmittal delivered pursuant to the
Registered Exchange Offer; (iii) if requested by an Initial Purchaser
within a reasonable time after receiving any such document, include the
information required by Items 507 or 508 of Regulation S-K under the
Securities Act, as applicable, in the prospectus forming a part of the
Exchange Offer Registration Statement; (iv) include within the
prospectus contained in the Exchange Offer Registration Statement a
section entitled "Plan of Distribution," reasonably acceptable to the
Initial Purchasers, which shall contain a summary statement of the
positions taken or policies made by the staff of the Commission with
respect to the potential "underwriter" status of any broker-dealer that
is the beneficial owner (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) of Exchange
Securities received by such broker-dealer in the Registered Exchange
Offer (a "Participating Broker-Dealer"), whether such positions or
policies have been publicly disseminated by the staff of the Commission
or such positions or policies, in the reasonable judgment of the
Initial Purchasers based upon advice of counsel (which may be in-house
counsel), represent the prevailing views of the staff of the
Commission; and (v) in the case of a Shelf Registration Statement,
include the names of the Holders who propose to sell Securities
pursuant to the Shelf Registration Statement as selling
securityholders.
(b) The Company shall give written notice to the Initial
Purchasers, the Holders of the Securities and any Participating
Broker-Dealer from whom the Company has received prior written notice
that it will be a Participating Broker-Dealer in the Registered
Exchange Offer (which notice pursuant to clauses (ii)-(vi) hereof shall
be accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made):
(i) when the Registration Statement or any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective;
(ii) of any request by the Commission for amendments
or supplements to the Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by the Company or its legal
counsel of any notification with respect to the suspension of
the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose;
(v) of the happening of any event that requires the
Company and the Guarantors to make changes in the Registration
Statement or the prospectus in order that the Registration
Statement or the prospectus do not contain an untrue statement
of a material fact nor omit to state a material fact required
to be stated therein or necessary to make the statements
therein (in the case of the prospectus, in light of the
circumstances under which they were made) not misleading; and
(vi) of any good-faith determination by the Company
that it is advisable to suspend use of the Registration
Statement or the prospectus for a period of time due to
pending material corporate developments or similar material
events that have not yet been publicly disclosed and as to
which the Company reasonably believes public disclosure will
be prejudicial to the Company;
provided that the aggregate number of days in any 365-day period during
which the use of the prospectus is suspended by the Company pursuant to
clauses (v) or (vi) hereof shall not exceed 90.
90
(c) The Company and the Guarantors shall make every reasonable
effort to obtain the withdrawal, at the earliest possible time, of any
order suspending the effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of Securities
included within the coverage of the Shelf Registration, without charge,
at least one copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits
thereto (including those, if any, incorporated by reference).
(e) The Company shall deliver to each Exchanging Dealer and
each Initial Purchaser, and to any other Holder who so requests,
without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if any Initial Purchaser or any such
Holder requests, all exhibits thereto (including those incorporated by
reference).
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Securities included within the coverage of
the Shelf Registration, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in the
Shelf Registration Statement and any amendment or supplement thereto as
such person may reasonably request. The Company and the Guarantors
consent, subject to the provisions of this Agreement, to the use of the
prospectus or any amendment or supplement thereto by each of the
selling Holders of the Securities in connection with the offering and
sale of the Securities covered by the prospectus, or any amendment or
supplement thereto, included in the Shelf Registration Statement.
(g) The Company shall deliver to each Initial Purchaser, any
Exchanging Dealer, any Participating Broker-Dealer and such other
persons required to deliver a prospectus following the Registered
Exchange Offer, without charge, as many copies of the final prospectus
included in the Exchange Offer Registration Statement and any amendment
or supplement thereto as such persons may reasonably request. The
Company and the Guarantors consent, subject to the provisions of this
Agreement, to the use of the prospectus or any amendment or supplement
thereto by any Initial Purchaser, if necessary, any Participating
Broker-Dealer and such other persons required to deliver a prospectus
following the Registered Exchange Offer in connection with the offering
and sale of the Exchange Securities covered by the prospectus, or any
amendment or supplement thereto, included in such Exchange Offer
Registration Statement.
(h) Prior to any public offering of the Securities pursuant to
any effective Registration Statement the Company shall use reasonable
efforts to register or qualify or cooperate with the Holders of the
Securities included therein and their respective counsel in connection
with the registration or qualification of the Securities for offer and
sale under the securities or "blue sky" laws of such states of the
United States as any Holder of the Securities reasonably requests in
writing and do any and all other acts or things necessary or advisable
to enable the offer and sale in such jurisdictions of the Securities
covered by such Registration Statement; provided, however, that the
Company and the Guarantors shall not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action which would subject it to general
service of process or to taxation in any jurisdiction where it is not
then so subject.
(i) The Company and the Guarantors shall cooperate with the
Holders of the Securities to facilitate the timely preparation and
delivery of certificates, if any, representing the Securities to be
sold pursuant to any Registration Statement free of any restrictive
legends and in such denominations and registered in such names as the
Holders may request a reasonable period of time prior to sales of the
Securities pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by
paragraphs (ii) through (vi) of Section 3(b) above during the period
for which the Company and the Guarantors are required to maintain an
effective Registration Statement, the Company and the Guarantors shall
promptly
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prepare and file any requisite post-effective amendment to the
Registration Statement, any requisite supplement to the related
prospectus or any other required document so that, as thereafter
delivered to Holders of the Securities or purchasers of 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
under which they were made, not misleading. If the Company notifies the
Initial Purchasers, the Holders of the Securities and any known
Participating Broker-Dealer in accordance with paragraphs (ii) through
(vi) of Section 3(b) above to suspend the use of the prospectus, then
the Initial Purchasers, the Holders of the Securities and any such
Participating Broker-Dealers shall suspend use of such prospectus, and
the period of effectiveness of the Shelf Registration Statement
provided for in Section 2(b) above and the Exchange Offer Registration
Statement provided for in Section 1 above shall each be extended by the
number of days from and including the date of the giving of such notice
to and including the date when the Initial Purchasers, the Holders of
the Securities and any known Participating Broker-Dealer shall have
received any amended or supplemented prospectus pursuant to this
Section 3(j) or shall have received written notice from the Company
that the prospectus is again usable.
(k) Not later than the effective date of the applicable
Registration Statement, the Company will provide a CUSIP number for the
Initial Securities, the Exchange Securities or the Private Exchange
Securities, as the case may be, and provide the applicable trustee with
printed certificates for the Initial Securities, the Exchange
Securities or the Private Exchange Securities, as the case may be, in a
form eligible for deposit with The Depository Trust Company.
(l) The Company and the Guarantors will comply with all rules
and regulations of the Commission to the extent and so long as they are
applicable to the Registered Exchange Offer or the Shelf Registration
and will make generally available to its security holders (or otherwise
provide in accordance with Section 11(a) of the Securities Act and Rule
158 promulgated thereunder) an earning statement satisfying the
provisions of Section 11(a) of the Securities Act, no later than 45
days after the end of a 12-month period (or 90 days, if such period is
a fiscal year) beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of the Registration
Statement, which statement shall cover such 12-month period.
(m) The Company and the Guarantors shall cause the Indenture
to be qualified under the Trust Indenture Act of 1939, as amended, in a
timely manner and containing such changes, if any, as shall be
necessary for such qualification. In the event that such qualification
would require the appointment of a new trustee under the Indenture, the
Company shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(n) The Company and the Guarantors may require each Holder of
Transfer Restricted Securities to be sold pursuant to the Shelf
Registration Statement to furnish to the Company and the Guarantors
such information regarding the Holder and the distribution of the
Securities as the Company and the Guarantors may from time to time
reasonably require for inclusion in the Shelf Registration Statement,
and the Company and the Guarantors may exclude from such registration
the Securities of any Holder that fails to furnish such information
within a reasonable time after receiving such request.
(o) The Company and the Guarantors shall enter into such
customary agreements (including, if requested, an underwriting
agreement in customary form) and take all such other action, if any, as
any Holder of the Securities shall reasonably request in order to
facilitate the disposition of the Securities pursuant to any Shelf
Registration.
(p) In the case of any Shelf Registration, the Company and the
Guarantors shall (i) make reasonably available for inspection by the
Holders of the Securities, any underwriter participating in any
disposition pursuant to the Shelf Registration Statement and any
attorney, accountant or other agent retained by the Holders of the
Securities or any such underwriter all relevant financial and other
records, pertinent corporate documents and properties of the Company
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and the Guarantors and (ii) cause the Company's and the Guarantors'
officers, directors, employees, accountants and auditors to supply all
relevant information reasonably requested by the Holders of the
Securities or any such underwriter, attorney, accountant or agent in
connection with the Shelf Registration Statement, in each case, as
shall be reasonably necessary to enable such persons to conduct a
reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Initial
Purchasers by you and on behalf of the other parties, by one counsel
designated by and on behalf of such other parties as described in
Section 4 hereof; and provided, further, that the foregoing inspection
and information gathering shall be subject to any confidentiality
procedures reasonably instituted by the Company.
(q) In the case of any Shelf Registration, the Company and the
Guarantors, if requested by the Holders of not less than a majority in
aggregate principal amount of the Securities covered thereby, shall
cause (i) their counsel to deliver an opinion reasonably satisfactory
to such Holders, the managing underwriters and their respective counsel
and updates thereof relating to the Securities in customary form
addressed to such Holders and the managing underwriters, if any,
thereof and dated, in the case of the initial opinion, the effective
date of such Shelf Registration Statement (it being agreed that the
matters to be covered by such opinion shall be those customary for
underwritten offerings and include, without limitation, the matters
similar to those set forth in Section 6(d), 6(e) and 6(f) of the
Purchase Agreement); (ii) its officers to execute and deliver all
customary documents and certificates and updates thereof requested by
any underwriters of the applicable Securities and (iii) its independent
public accountants and the independent public accountants with respect
to any other entity for which financial information is provided in the
Shelf Registration Statement to provide to the selling Holders of the
applicable Securities and any underwriter therefor a comfort letter in
customary form and covering matters of the type customarily covered in
comfort letters in connection with primary underwritten offerings,
subject to receipt of appropriate documentation as contemplated, and
only if permitted, by Statement of Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if requested
by any Initial Purchaser or any known Participating Broker-Dealer, the
Company and the Guarantors shall cause (i) their counsel to deliver to
such Initial Purchaser or such Participating Broker-Dealer a signed
opinion in the form set forth in Sections 6(d) and 6(e) of the Purchase
Agreement with such changes as are customary in connection with the
preparation of a Registration Statement and (ii) the Company's
independent public accountants and the independent public accountants
with respect to any other entity for which financial information is
provided in the Registration Statement to deliver to such Initial
Purchaser or such Participating Broker-Dealer a comfort letter, in
customary form, meeting the requirements as to the substance thereof as
set forth in Section 6(a) and (b) of the Purchase Agreement, with
appropriate date changes.
(s) If a Registered Exchange Offer or a Private Exchange is to
be consummated, upon delivery of the Initial Securities by Holders to
the Company (or to such other Person as directed by the Company) in
exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, the Company shall mark, or caused to be
marked, on the Initial Securities so exchanged that such Initial
Securities are being canceled in exchange for the Exchange Securities
or the Private Exchange Securities, as the case may be; in no event
shall the Initial Securities be marked as paid or otherwise satisfied.
(t) The Company and their Guarantors will use their respective
best efforts to (a) if the Initial Securities have been rated prior to
the initial sale of such Initial Securities, confirm such ratings will
apply to the Securities covered by a Registration Statement, or (b) if
the Initial Securities were not previously rated, cause the Securities
covered by a Registration Statement to be rated with the appropriate
rating agencies, if so requested by Holders of not less than a majority
in aggregate principal amount of Securities covered by such
Registration Statement, or by the managing underwriters, if any.
9
(u) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a member
of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules (the "RULES") of
the National Association of Securities Dealers, Inc. ("NASD")) thereof,
whether as a Holder of such Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or
otherwise, the Company and the Guarantors will use their respective
best efforts to assist such broker-dealer in complying with the
requirements of such Rules, including, without limitation, by (i) if
such Rules, including Rule 2720, shall so require, engaging a
"qualified independent underwriter" (as defined in Rule 2720) to
participate in the preparation of the Registration Statement relating
to such Securities, to exercise usual standards of due diligence in
respect thereto and, if any portion of the offering contemplated by
such Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of such
Securities, (ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters
provided in Section 5 hereof and (iii) providing such information to
such broker-dealer as may be required in order for such broker-dealer
to comply with the requirements of the Rules.
(v) The Company and the Guarantors shall use their respective
best efforts to take all other steps necessary to effect the
registration of the Securities covered by a Registration Statement
contemplated hereby.
4. Registration Expenses.
(a) All expenses incident to the Company's and the Guarantors'
performance of and compliance with this Agreement will be borne by the
Company and the Guarantors, regardless of whether a Registration
Statement is ever filed or 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 Securities to be issued in the Registered
Exchange Offer and the Private Exchange and printing of
prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the
Company and the Guarantors;
(v) all application and filing fees in connection
with listing the Exchange Securities 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 (including the
expenses of any special audit and comfort letters required by
or incident to such performance).
The Company and the Guarantors will bear their 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, the Company and the Guarantors will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities
who are tendering Initial Securities in the Registered Exchange Offer
and/or selling or reselling Securities pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
the Shelf Registration Statement, as applicable, for the reasonable
10
fees and disbursements of not more than one counsel, who shall be Davis
Polk & Wardwell unless another firm shall be chosen by the Holders of
not less than a majority in principal amount of the Transfer Restricted
Securities for whose benefit such Registration Statement is being
prepared.
5. Indemnification.
(a) The Company and each of the Guarantors agree, jointly and
severally, to indemnify and hold harmless each Holder of the
Securities, any Participating Broker-Dealer and each person, if any,
who controls such Holder or such Participating Broker-Dealer within the
meaning of the Securities Act or the Exchange Act (each Holder, any
Participating Broker-Dealer and such controlling persons are referred
to collectively as the "INDEMNIFIED PARTIES") from and against any
losses, claims, damages or liabilities, joint or several, or any
actions in respect thereof (including, but not limited to, any losses,
claims, damages, liabilities or actions relating to purchases and sales
of the Securities) to which each Indemnified Party may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as
such losses, claims, damages, liabilities or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a
material fact contained in a Registration Statement or prospectus or in
any amendment or supplement thereto or in any preliminary prospectus
relating to a Shelf Registration, or arise out of, or are based upon,
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse, as incurred, the
Indemnified Parties for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; PROVIDED,
HOWEVER, that (i) neither the Company nor any Guarantor shall be liable
in any such case to the extent that such loss, claim, damage or
liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in a
Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to a Shelf
Registration in reliance upon and in conformity with written
information pertaining to such Holder and furnished to the Company or a
Guarantor by or on behalf of such Holder specifically for inclusion
therein and (ii) with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus
relating to a Shelf Registration Statement, the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any
Holder or Participating Broker-Dealer from whom the person asserting
any such losses, claims, damages or liabilities purchased the
Securities concerned, to the extent that a prospectus relating to such
Securities was required to be delivered by such Holder or Participating
Broker-Dealer under the Securities Act in connection with such purchase
and any such loss, claim, damage or liability of such Holder or
Participating Broker-Dealer results from the fact that there was not
sent or given to such person, at or prior to the written confirmation
of the sale of such Securities to such person, a copy of the final
prospectus if the Company and the Guarantors had previously furnished
copies thereof to such Holder or Participating Broker-Dealer; PROVIDED
FURTHER, HOWEVER, that this indemnity agreement will be in addition to
any liability which the Company may otherwise have to such Indemnified
Party. The Company and the Guarantors shall also indemnify
underwriters, their officers and directors and each person who controls
such underwriters within the meaning of the Securities Act or the
Exchange Act to the same extent as provided above with respect to the
indemnification of the Holders of the Securities if requested by such
Holders.
(b) Each Holder of the Securities, severally and not jointly,
will indemnify and hold harmless the Company and the Guarantors and
each person, if any, who controls the Company or a Guarantor within the
meaning of the Securities Act or the Exchange Act from and against any
losses, claims, damages or liabilities or any actions in respect
thereof, to which the Company or any such controlling person may become
subject under the Securities Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement or
prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to a Shelf Registration, or arise out
of or are based upon the omission or alleged omission to state therein
a material fact necessary to make the statements
11
therein not misleading, but in each case only to the extent that the
untrue statement or omission or alleged untrue statement or omission
was made in reliance upon and in conformity with written information
pertaining to such Holder and furnished to the Company or a Guarantor
by or on behalf of such Holder specifically for inclusion therein; and,
subject to the limitation set forth immediately preceding this clause,
shall reimburse, as incurred, the Company and the Guarantors for any
legal or other expenses reasonably incurred by the Company or any such
controlling person in connection with investigating or defending any
loss, claim, damage, liability or action in respect thereof. This
indemnity agreement will be in addition to any liability which such
Holder may otherwise have to the Company or the Guarantors or any of
their respective controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action or proceeding
(including a governmental investigation), such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Section 5, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying
party will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof the indemnifying party will
not be liable to such indemnified party under this Section 5 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the
defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder
by such indemnified party unless such settlement (i) includes an
unconditional release of such indemnified party from all liability on
any claims that are 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 any indemnified party.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to in subsection (a) or (b) above in such
proportion as is appropriate to reflect the relative fault of the
indemnifying party or parties on the one hand and the indemnified party
on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable
considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company
and the Guarantors on the one hand or such Holder or such other
indemnified party, as the case may be, on the other, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any action or claim which is the subject of this subsection
(d). Notwithstanding any other provision of this Section 5(d), the
Holders of the Securities shall not be required to contribute any
amount in excess of the amount by which the net proceeds received by
such Holders from the sale of the Securities pursuant to a Registration
Statement exceeds the amount of damages which such Holders have
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
12
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. For purposes
of this paragraph (d), each person, if any, who controls such
indemnified party within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Company or
any Guarantor within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as the Company or such
Guarantor.
(e) The agreements contained in this Section 5 shall survive
the sale of the Securities pursuant to a Registration Statement and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on
behalf of any indemnified party.
6. Additional Interest Under Certain Circumstances.
(a) Additional interest (the "ADDITIONAL INTEREST") with
respect to the Securities shall be assessed as follows if any of the
following events occur (each such event in clauses (i) through (iv)
below being herein called a "REGISTRATION DEFAULT"):
(i) any Registration Statement required by this
Agreement is not filed with the Commission on or prior to the
applicable Filing Deadline;
(ii) any Registration Statement required by this
Agreement is not declared effective by the Commission on or
prior to the applicable Effectiveness Deadline;
(iii) the Registered Exchange Offer has not been
consummated on or prior to the Consummation Deadline; or
(iv) any Registration Statement required by this
Agreement has been declared effective by the Commission but
(A) such Registration Statement thereafter ceases to be
effective or (B) such Registration Statement or the related
prospectus ceases to be usable in connection with resales of
Transfer Restricted Securities during the periods specified
herein because either (1) any event occurs as a result of
which the related prospectus forming part of such Registration
Statement would include any 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, or (2) it shall be
necessary to amend such Registration Statement or supplement
the related prospectus, to comply with the Securities Act or
the Exchange Act or the respective rules thereunder.
Each of the foregoing will constitute a Registration Default whatever
the reason for any such event and whether it is voluntary or
involuntary or is beyond the control of the Company and the Guarantors
or pursuant to operation of law or as a result of any action or
inaction by the Commission .
Additional Interest shall accrue on the Securities over and above the
interest set forth in the title of the Securities from and including
the date on which any such Registration Default shall occur to but
excluding the date on which all such Registration Defaults have been
cured, at a rate of 0.25% per annum (the "ADDITIONAL INTEREST RATE")
for the first 90-day period immediately following the occurrence of
such Registration Default. The Additional Interest Rate shall increase
by an additional 0.25% per annum with respect to each subsequent 90-day
period until all Registration Defaults have been cured, up to a maximum
Additional Interest Rate of 1.0% per annum.
(b) A Registration Default referred to in Section 6(a)(iv)
hereof shall be deemed not to have occurred and be continuing in
relation to a Shelf Registration Statement or the related prospectus if
(i) such Registration Default has occurred solely as a result of (x)
the filing of a
13
post-effective amendment to such Shelf Registration Statement to
incorporate annual audited financial information with respect to the
Company where such post-effective amendment is not yet effective and
needs to be declared effective to permit Holders to use the related
prospectus or (y) other material events, with respect to the Company
that would need to be described in such Shelf Registration Statement or
the related prospectus and (ii) in the case of clause (y), the Company
is proceeding promptly and in good faith to amend or supplement such
Shelf Registration Statement and related prospectus to describe such
events; PROVIDED, HOWEVER, that in any case if such Registration
Default occurs for a continuous period in excess of 30 days, Additional
Interest shall be payable in accordance with the above paragraph from
the day such Registration Default occurs until such Registration
Default is cured.
(c) Any amounts of Additional Interest due pursuant to Section
6(a) will be payable in cash on the regular interest payment dates with
respect to the Securities. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest Rate by
the principal amount of the Securities and further multiplied by a
fraction, the numerator of which is the number of days such Additional
Interest Rate was applicable during such period (determined on the
basis of a 360-day year comprised of twelve 30-day months), and the
denominator of which is 360.
(d) "TRANSFER RESTRICTED SECURITIES" means each Security until
(i) the date on which such Security has been exchanged by a person
other than a broker-dealer for a freely transferable Exchange Security
in the Registered Exchange Offer, (ii) following the exchange by a
broker-dealer in the Registered Exchange Offer of an Initial Security
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, (iii) the date on which such Security has been
effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (iv) the date on
which such Security is distributed to the public pursuant to Rule 144
under the Securities Act or is saleable pursuant to Rule 144(k) under
the Securities Act.
7. Rules 144 and 144A. The Company and the Guarantors shall use their
respective best efforts to file the reports required to be filed by them under
the Securities Act and the Exchange Act in a timely manner and, if at any time
the Company or the Guarantors are not required to file such reports, they will,
upon the request of any Holder of Securities, make publicly available other
information so long as necessary to permit sales of their securities pursuant to
Rules 144 and 144A. The Company and the Guarantors covenant that they will take
such further action as any Holder of Securities may reasonably request, all to
the extent required from time to time to enable such Holder to sell Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rules 144 and 144A (including the requirements of Rule
144A(d)(4)). The Company and the Guarantors will provide a copy of this
Agreement to prospective purchasers of Initial Securities identified to the
Company and the Guarantors by the Initial Purchasers upon request. Upon the
request of any Holder of Initial Securities, the Company and the Guarantors
shall deliver to such Holder a written statement as to whether it has complied
with such requirements. Notwithstanding the foregoing, nothing in this Section 7
shall be deemed to require the Company or the Guarantors to register any of its
securities pursuant to the Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("MANAGING UNDERWRITERS") will be selected by
the Holders of not less than a majority in aggregate principal amount of such
Transfer Restricted Securities to be included in such offering and shall be
reasonably acceptable to the Company. The Company shall pay the fees and
expenses of such investment bankers and managers to the extent provided in
Section 4. In no event shall the Company be responsible for paying any
underwriting discounts or commissions in connection with such underwritten
offering.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting
14
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
9. Miscellaneous.
(a) Remedies. The Company and the Guarantors acknowledge and
agrees that any failure by the Company and the Guarantors to comply
with their obligations under Section 1 and 2 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 Sections 1 and 2
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.
(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. 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 or any Guarantor's
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 departures from the provisions hereof may not be given, except by
the Company and the Guarantors and the written consent of the Holders
of not less than a majority in aggregate principal amount of the
Securities affected by such amendment, modification, supplement, waiver
or consents. Without the consent of the Holder of each Security,
however, no modification may change the provisions relating to the
payment of Additional Interest.
(d) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery,
first-class mail, facsimile transmission, or air courier which
guarantees overnight delivery:
(1) if to a Holder of the Securities, at the
most current address given by such Holder to the
Company.
(2) if to the Initial Purchasers;
Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, NY 10010-3629
Fax No.: (212) 325-8278
Attention: Transactions Advisory Group
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Fax No.: (212) 450-3800
Attention: Winthrop B. Conrad, Jr.
15
(3) if to the Company and the Guarantors, at
the Company's address as follows:
Roadway Corporation
P.O. Box 471
Akron, OH 44309
Fax No.: (303) 258-6082
Attention: Treasurer
with a copy to:
Jones, Day, Reavis & Pogue
901 Lakeside Avenue
Cleveland, OH 44114
Fax No.: (216) 579-0212
Attention: Christopher M. Kelly
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the next business day after timely delivery to a recognized
overnight courier, if sent by such courier, guaranteeing next day delivery.
(e) Third Party Beneficiaries. 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 their rights or the rights of Holders
hereunder.
(f) Successors and Assigns. This Agreement shall be binding
upon the Company and the Guarantors and their respective successors and
assigns.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
(j) Severability. If 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.
(k) Securities Held by the Company. Whenever the consent or
approval of Holders of a specified percentage of principal amount of
Securities is required hereunder, Securities held by the Company or its
affiliates (other than subsequent Holders of Securities if such
subsequent Holders are deemed to be affiliates solely by reason of
their holdings of such Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such
required percentage.
16
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the several Initial Purchasers, the Company and the Guarantors in
accordance with its terms.
Very truly yours,
ROADWAY CORPORATION
By: /s/ Joseph R. Boni III
-----------------------------------
Name: Joseph R. Boni III
Title: Treasurer
ROADWAY EXPRESS, INC.
as Guarantor
By: /s/ Joseph R. Boni III
-----------------------------------
Name: Joseph R. Boni III
Title: Treasurer
ROADWAY EXPRESS INTERNATIONAL, INC.
as Guarantor
By: /s/ Joseph R. Boni III
-----------------------------------
Name: Joseph R. Boni III
Title: Treasurer
ROADWAY REVERSE LOGISTICS, INC.
as Guarantor
By: /s/ Joseph R. Boni III
-----------------------------------
Name: Joseph R. Boni III
Title: Treasurer
ARNOLD INDUSTRIES, INC.
as Guarantor
By: /s/ Joseph R. Boni III
-----------------------------------
Name: Joseph R. Boni III
Title: Vice President and
Treasurer
NEW PENN MOTOR EXPRESS, INC.
as Guarantor
By: /s/ Joseph R. Boni III
-----------------------------------
Name: Joseph R. Boni III
Title: Treasurer
ARNOLD TRANSPORTATION SERVICES, INC.
as Guarantor
By: /s/ Joseph R. Boni III
-----------------------------------
Name: Joseph R. Boni III
Title: Treasurer
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
BMO NESBITT BURNS CORP.
NATCITY INVESTMENTS, INC.
ABN AMRO FINANCIAL SERVICES, INC.
BNP PARIBAS SECURITIES CORP.
FLEET SECURITIES, INC.
SUNTRUST CAPITAL MARKETS, INC.
FIRST UNION SECURITIES, INC.
SBK BROOKS INVESTMENT CORP.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
by: /s/ Scott E. Zoellner
--------------------------------------------
Name: Scott E. Zoellner
Title: Director
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Initial Securities
where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
A-1
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Initial Securities, where such Initial Securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities. See "Plan of
Distribution."
B-1
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired as a
result of market-making activities or other trading activities. The Company has
agreed that, for a period of 180 days after the Expiration Date, it will make
this prospectus, as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until , 200 , all dealers
effecting transactions in the Exchange Securities may be required to deliver a
prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Securities. Any broker-dealer that resells Exchange Securities that were
received by it for its own account pursuant to the Exchange Offer and any broker
or dealer that participates in a distribution of such Exchange Securities may be
deemed to be an "underwriter" within the meaning of the Securities Act and any
profit on any such resale of Exchange Securities and any commission or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that, by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
Holders of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
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(1) In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the inside front cover page of the Exchange Offer prospectus below the
Table of Contents.
C-1
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name: _______________________________________________________
Address: _____________________________________________________
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
D-1