EXHIBIT 4.2
EXECUTION COPY
Calgon Carbon Corporation
5.00% Convertible Senior Notes due 2036
Registration Rights Agreement
August 18, 2006
J.P. Morgan Securities Inc.
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Calgon Carbon Corporation, a Delaware corporation (the "Company"), proposes
to issue and sell to J.P. Morgan Securities Inc. (the "Initial Purchaser"), upon
the terms and subject to the conditions set forth in a purchase agreement, dated
August 14, 2006 (the "Purchase Agreement"), among the Company, the Guarantors
(as defined below) and the Initial Purchaser, $65,000,000 aggregate principal
amount of its 5.00% Convertible Senior Notes due 2036 (the "Firm Notes") and, at
the election of the Initial Purchaser, an additional $10,000,000 aggregate
principal amount of the Company's 5.00% Convertible Senior Notes due 2036 (the
"Additional Notes" and, together with the Firm Notes, the "Notes") to be
guaranteed (the "Guarantees") by the subsidiaries of the Company listed on the
signature page hereto (collectively, the "Guarantors"). The Notes will be
convertible into fully paid, non-assessable shares of common stock, par value
$0.01 per share, of the Company on the terms, and subject to the conditions, set
forth in the Indenture (as defined below). Capitalized terms used but not
defined herein shall have the meanings given to such terms in the Purchase
Agreement.
As an inducement to the Initial Purchaser to enter into the Purchase
Agreement, and in satisfaction of a condition to the obligations of the Initial
Purchaser thereunder, the Company and the Guarantors agree with the Initial
Purchaser, for the benefit of the holders (including the Initial Purchaser) of
the Notes and the Shares (as defined below) (collectively, the "Holders"), as
follows:
1. Certain Definitions.
For purposes of this Registration Rights Agreement the following terms
shall have the following meanings:
(a) "Additional Guarantor" means any subsidiary of the Company that
executes a Subsidiary Guarantee under the Indenture after the date of this
Agreement.
(b) "Additional Interest" has the meaning assigned thereto in Section
2(d).
(c) "Additional Interest Payment Date" has the meaning assigned
thereto in Section 2(d).
(d) "Additional Notes" has the meaning specified in the first
paragraph of this Agreement.
2
(e) "Agreement" means this Registration Rights Agreement, as the same
may be amended from time to time pursuant to the terms hereof.
(f) "Closing Date" means the date on which any Notes are initially
issued.
(g) "Commission" means the 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.
(h) "Company" has the meaning specified in the first paragraph of this
Agreement.
(i) "Deferral Notice" has the meaning assigned thereto in Section
3(b).
(j) "Deferral Period" has the meaning assigned thereto in Section
3(b).
(k) "Effective Period" has the meaning assigned thereto in Section
2(a).
(l) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
(m) "Firm Notes" has the meaning specified in the first paragraph of
this Agreement.
(n) "Free Writing Prospectus" means each free writing prospectus (as
defined in Rule 405 under the Securities Act) prepared by or on behalf of
the Company or used or referred to by the Company in connection with the
sale of the Securities.
(o) "Guarantees" has the meaning specified in the first paragraph of
this Agreement.
(p) "Guarantors" has the meaning set forth in the preamble and also
includes any Guarantor's successors and any Additional Guarantors.
(q) "Holder" means each holder, from time to time, of Registrable
Securities (including the Initial Purchaser).
(r) "Indenture" means the Indenture dated as of the date hereof among
the Company, the Guarantors and The Bank of New York, as Trustee, pursuant
to which the Notes and the Guarantees are being issued.
(s) "Initial Purchaser" has the meaning specified in the first
paragraph of this Agreement.
(t) "Issuer Information" has the meaning set forth in Section 6(a)
hereof.
(u) "Material Event" has the meaning assigned thereto in Section
3(a)(iv).
(v) "Majority Holders" shall mean, on any date, holders of the
majority of the Shares constituting Registrable Securities; for the
purposes of this definition, Holders of Notes constituting Registrable
Securities shall be deemed to be the Holders of the number of Shares into
which such Notes are or would be convertible as of such date.
3
(w) "NASD" shall mean the National Association of Securities Dealers,
Inc.
(x) "NASD Rules" shall mean the Conduct Rules and the By-Laws of the
NASD.
(y) "Notes" has the meaning specified in the first paragraph of this
Agreement.
(z) "Notice and Questionnaire" means a written notice delivered to the
Company containing substantially the information called for by the Form of
Selling Securityholder Notice and Questionnaire attached as Annex A to the
Offering Memorandum.
(aa) "Notice Holder" means, on any date, any Holder that has delivered
a Notice and Questionnaire to the Company prior to such date.
(bb) "Offering Memorandum" means the Offering Memorandum dated August
14, 2006 relating to the offer and sale of the Securities.
(cc) "Person" means a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
(dd) "Prospectus" means the prospectus included in any Shelf
Registration Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials
incorporated by reference or explicitly deemed to be incorporated by
reference in such Prospectus.
(ee) "Purchase Agreement" has the meaning specified in the first
paragraph of this Agreement.
(ff) "Registrable Securities" means
(i) any Notes and the Subsidiary Guarantees until the earliest
of (i) their effective registration under the Securities Act
and the resale of all such Notes and Subsidiary Guarantees
in accordance with the Shelf Registration Statement, (ii)
the date on which such Notes and Subsidiary Guarantees are
(A) sold pursuant to Rule 144 under circumstances in which
any legend borne by such Notes and Subsidiary Guarantees
relating to restrictions on transferability thereof, under
the Securities Act or otherwise, is removed or (B) freely
transferable without restriction under Rule 144(k) or (iii)
the date on which such Notes have been converted (and the
related Subsidiary Guarantees have been terminated) or
otherwise cease to be outstanding;
(ii) any Shares issuable upon conversion of any Notes
constituting Registrable Securities, until the earliest of
(i) their effective registration under the Securities Act
and the resale of all such Shares in accordance with the
Shelf Registration Statement, (ii) the date on which such
Shares are (A) sold pursuant to Rule 144 under circumstances
in which any legend borne by such Shares relating to
restrictions on transferability thereof, under the
Securities Act or otherwise, is removed or (B) freely
transferable without restriction under Rule 144(k) or (iii)
the date on which such Shares cease to be outstanding.
4
(gg) "Registration Default" has the meaning assigned thereto in
Section 2(d).
(hh) "Registration Expenses" has the meaning assigned thereto in
Section 5.
(ii) "Rule 144," "Rule 405" and "Rule 415" mean, in each case, such
rule as promulgated under the Securities Act.
(jj) "Securities" means, collectively, the Notes and the Shares.
(kk) "Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
(ll) "Shares" means the shares of common stock of the Company, par
value $0.01 per share, into which the Notes are convertible or that have
been issued upon a conversion from Notes into common stock of the Company.
(mm) "Shelf Registration Statement" means the shelf registration
statement referred to in Section 2(a), as amended or supplemented by any
amendment or supplement, including post-effective amendments, and all
materials incorporated by reference or explicitly deemed to be incorporated
by reference in such Shelf Registration Statement.
(nn) "Special Counsel" shall have the meaning assigned thereto in
Section 5.
(oo) "Subsidiary Guarantee" means, individually, any Guarantee of
payment of the Securities by a Subsidiary Guarantor pursuant to the terms
of the Indenture and any supplemental indenture thereto and, collectively,
all such Guarantees. Each such Subsidiary Guarantee will be in the form
prescribed by the Indenture.
(pp) "Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, or any successor thereto, and the rules, regulations and forms
promulgated thereunder.
(qq) "Trustee" shall have the meaning assigned such term in the
Indenture.
Unless the context otherwise requires, any reference herein to a "Section"
or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision. Unless the context otherwise requires, any
reference to a statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be amended from time to
time.
2. Registration Under the Securities Act.
(a) The Company and the Guarantors agree to file under the Securities
Act as promptly as practicable but in any event within 90 days after the
Closing Date a shelf registration statement providing for the registration
of, and the sale on a continuous or delayed basis by the Holders of, all of
the Registrable Securities, pursuant to Rule 415 or any similar rule that
may be adopted by the Commission. The Company and the Guarantors agree to
use their reasonable efforts to cause the Shelf Registration Statement to
become effective within 240 days after the Closing Date and to keep such
Shelf Registration Statement continuously effective until the earlier of
(i) the second anniversary of the Closing Date or (ii) such time as there
are no longer any Registrable Securities outstanding (the "Effective
Period"). None of the Company's securityholders or the Guarantors'
securityholders (other
5
than Holders of Registrable Securities) shall have the right to include any
of the Company's securities or the Guarantors' securities in the Shelf
Registration Statement.
(b) The Company and the Guarantors further agree that they 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 or such amendment or supplement, (i) to comply in
all material respects with the applicable requirements of the Securities
Act; 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 the case of the Prospectus, in the
light of the circumstances under which they were made) not misleading, and
the Company and the Guarantors agree to furnish to the Holders of the
Registrable Securities copies of any supplement or amendment prior to its
being used or promptly following its filing with the Commission; provided,
however, that the Company shall have no obligation to deliver to Holders of
Registrable Securities copies of any amendment consisting exclusively of an
Exchange Act report or other Exchange Act filing otherwise publicly
available on the Company's website. If the Shelf Registration Statement, as
amended or supplemented from time to time, ceases to be effective for any
reason at any time during the Effective Period (other than because all
Registrable Securities registered thereunder shall have been sold pursuant
thereto or shall have otherwise ceased to be Registrable Securities), the
Company and the Guarantors shall use their reasonable best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness
thereof.
(c) Each Holder of Registrable Securities agrees that if such Holder
wishes to sell Registrable Securities pursuant to the Shelf Registration
Statement and related Prospectus, it will do so only in accordance with
this Section 2(c) and Section 3(b). From and after the date the Shelf
Registration Statement is declared or becomes effective, the Company and
the Guarantors shall, as promptly as is practicable after the date a Notice
and Questionnaire is delivered, and in any event within fifteen (15) days
after the date of receipt of such Notice and Questionnaire, or if the use
of the Prospectus has been suspended by the Company under Section 3(b)
hereof at the time of receipt of the Notice and Questionnaire, fifteen (15)
days after the expiration of the period during which the use of the
Prospectus is suspended:
(i) if required by applicable law, file with the Commission a
post-effective amendment to the Shelf Registration Statement or
prepare and, if required by applicable law, file a supplement to the
related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required document
so that the Holder delivering such Notice and Questionnaire is named
as a selling security holder in the Shelf Registration Statement and
the related Prospectus in such a manner as to permit such Holder to
deliver such Prospectus to purchasers of the Registrable Securities in
accordance with applicable law and, if the Company and the Guarantors
shall file a post-effective amendment to the Shelf Registration
Statement, use their reasonable efforts to cause such post-effective
amendment to be declared or to otherwise become effective under the
Securities Act as promptly as is practicable. Notwithstanding the
foregoing, the Company and the Guarantors shall not be required to
file more than one post-effective amendment to the Shelf Registration
Statement or supplement to the related Prospectus during any thirty
(30) day period;
(ii) provide such Holder copies of any documents filed pursuant
to Section 2(c)(i); and
(iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective amendment
filed pursuant to Section 2(c)(i);
6
provided that if such Notice and Questionnaire is delivered during a
Deferral Period, the Company shall so inform the Holder delivering
such Notice and Questionnaire and shall take the actions set forth in
clauses (i), (ii) and (iii) above upon expiration of the Deferral
Period in accordance with Section 3(b). Notwithstanding anything
contained herein to the contrary, the Company and the Guarantors shall
be under no obligation to name any Holder that is not a Notice Holder
as a selling securityholder in any Shelf Registration Statement or
related Prospectus; provided, however, that any Holder that becomes a
Notice Holder pursuant to the provisions of this Section 2(c) (whether
or not such Holder was a Notice Holder at the time the Shelf
Registration Statement was declared or otherwise became effective)
shall be named as a selling securityholder in the Shelf Registration
Statement or related Prospectus in accordance with the requirements of
this Section 2(c).
(d) If any of the following events (any such event a "Registration
Default") shall occur, then additional interest (the "Additional Interest")
shall become payable jointly and severally by the Company and the
Guarantors to Holders in respect of the Notes as follows:
(i) if the Shelf Registration Statement is not filed with the
Commission within 90 days following the Closing Date, then commencing
on the 91st day after the Closing Date, Additional Interest shall
accrue on the principal amount of the outstanding Notes that are
Registrable Securities at a rate of 0.25% per annum for the first 90
days following such 91st day and at a rate of 0.50% per annum
thereafter; or
(ii) if the Shelf Registration Statement is not declared
effective and does not otherwise become effective within 240 days
following the Closing Date, then commencing on the 241st day after the
Closing Date, Additional Interest shall accrue on the principal amount
of the outstanding Notes that are Registrable Securities at a rate of
0.25% per annum for the first 90 days following such 241st day and at
a rate of 0.50% per annum thereafter; or
(iii) if the Company or the Guarantors have failed to perform
their obligations set forth in Section 2(c) hereof within the time
periods required therein, then commencing on the first day after the
date by which the Company and the Guarantors were required to perform
such obligations, Additional Interest shall accrue on the principal
amount of the outstanding Notes that are Registrable Securities at a
rate of 0.25% per annum for the first 90 days and at a rate of 0.50%
per annum thereafter;
(iv) if the Shelf Registration Statement has been declared
effective or has otherwise become effective but such Shelf
Registration Statement ceases to be effective at any time during the
Effective Period (other than pursuant to Section 3(b) hereof), then
commencing on the day such Shelf Registration Statement ceases to be
effective, Additional Interest shall accrue on the principal amount of
the outstanding Notes that are Registrable Securities at a rate of
0.25% per annum for the first 90 days following such date on which the
Shelf Registration Statement ceases to be effective and at a rate of
0.50% per annum thereafter; or
(v) if the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted in respect of such period
pursuant to Section 3(b) hereof, then commencing on the day the
aggregate duration of Deferral Periods in any period exceeds the
number of days permitted in respect of such period (and again on the
first day of any subsequent Deferral Period during such period),
Additional Interest shall accrue on the principal amount of the
outstanding Notes that are Registrable Securities at a rate of 0.25%
per annum for the first 90 days and at a rate of 0.50% per annum
thereafter;
7
provided, however, that the Additional Interest rate on the Notes
shall not exceed in the aggregate 0.50% per annum and shall not be
payable under more than one clause above for any given period of time,
except that if Additional Interest would be payable under more than
one clause above, but at a rate of 0.25% per annum under one clause
and at a rate of 0.50% per annum under the other, then the Additional
Interest rate shall be the higher rate of 0.50% per annum; provided
further, however, that (1) upon the filing of the Shelf Registration
Statement (in the case of clause (i) above), (2) upon the
effectiveness of the Shelf Registration Statement (in the case of
clause (ii) above), (3) upon the performance by the Company and the
Guarantors of their obligations set forth in Section 2(c) hereof
within the time periods required therein (in the case of clause (iii)
above), (4) upon the effectiveness of the Shelf Registration Statement
which had ceased to remain effective (in the case of clause (iv)
above), (5) upon the termination of the Deferral Period that caused
the limit on the aggregate duration of Deferral Periods in a period
set forth in Section 3(b) to be exceeded (in the case of clause (v)
above) or (6) upon the termination of certain transfer restrictions on
the Securities as a result of the application of Rule 144(k) or any
successor provision, Additional Interest on the Notes as a result of
such clause, as the case may be, shall cease to accrue.
Additional Interest on the Notes, if any, will be payable in cash on
February 15 and August 15 of each year (the "Additional Interest Payment
Date") to holders of record of outstanding Notes that are Registrable
Securities on each preceding February 1 and August 1; provided that any
Additional Interest accrued with respect to any Notes or portion thereof
called for redemption on a redemption date or converted into Shares on a
conversion date prior to the Registration Default shall, in any such event,
be paid instead to the Holder who submitted such Notes or portion thereof
for redemption or conversion on the applicable redemption date or
conversion date, as the case may be, on such date (or promptly following
the conversion date, in the case of conversion). Following the cure of all
Registration Defaults requiring the payment of Additional Interest to the
Holders of Notes that are Registrable Securities pursuant to this Section,
the accrual of Additional Interest will cease (without in any way limiting
the effect of any subsequent Registration Default requiring the payment of
Additional Interest).
The Company shall notify the Trustee immediately upon the happening of
each and every Registration Default. The Trustee shall be entitled, on
behalf of Holders of Securities, to seek any available remedy for the
enforcement of this Agreement, including for the payment of any Additional
Interest. Notwithstanding the foregoing, the parties agree that the sole
monetary damages payable for a violation of the terms of this Agreement
with respect to which additional monetary amounts are expressly provided
shall be as set forth in this Section 2(d). Nothing shall preclude a Notice
Holder or Holder of Registrable Securities from pursuing or obtaining
specific performance or other equitable relief with respect to this
Agreement.
(e) A Shelf Registration Statement pursuant to this Section 2 will not
be deemed to have become effective unless it has been declared effective by
the SEC or is automatically effective upon filing with the SEC as provided
by Rule 462 under the Securities Act.
3. Registration Procedures.
The following provisions shall apply to the Shelf Registration Statement
filed pursuant to Section 2:
(a) The Company and the Guarantors shall:
(i) prepare and file with the Commission a registration statement
with respect to the shelf registration on any form which may be utilized by
the Company and the Guarantors and which shall permit the disposition of
the Registrable Securities in accordance
8
with the intended method or methods thereof, as specified in writing by the
Holders of the Registrable Securities, and use their reasonable efforts to
cause such registration statement to become effective in accordance with
Section 2(a) above;
(ii) before filing any Shelf Registration Statement or Prospectus
or any amendments or supplements thereto with the Commission, furnish to
the Initial Purchaser copies of all such documents proposed to be filed and
use reasonable efforts to reflect in each such document when so filed with
the Commission such comments as the Initial Purchaser reasonably shall
propose within three (3) Business Days of the delivery of such copies to
the Initial Purchaser;
(iii) use their reasonable efforts to prepare and file with the
Commission such amendments and post-effective amendments to the Shelf
Registration Statement and file with the Commission any other required
document as may be necessary to keep such Shelf Registration Statement
continuously effective until the expiration of the Effective Period; cause
the related Prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) under the Securities Act; and comply with
the provisions of the Securities Act applicable to it with respect to the
disposition of all Securities covered by such Shelf Registration Statement
during the Effective Period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Shelf Registration
Statement as so amended or such Prospectus as so supplemented;
(iv) promptly notify the Notice Holders of Registrable Securities
(A) when such Shelf Registration Statement or the Prospectus included
therein or any amendment or supplement to the Prospectus or post-effective
amendment has been filed with the Commission, and, with respect to such
Shelf Registration Statement or any post-effective amendment, when the same
has become effective, (B) of any request, following the effectiveness of
the Shelf Registration Statement, by the Commission or any other Federal or
state governmental authority for amendments or supplements to the Shelf
Registration Statement or related Prospectus or for additional information,
(C) of the issuance by the Commission of any stop order suspending the
effectiveness of such Shelf Registration Statement or the initiation or
written threat of any proceedings for that purpose, including the receipt
by the Company of any notice of objection of the Commission to the use of a
Shelf Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act, (D) of the receipt by
the Company or any Guarantor of any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or written threat of any proceeding for
such purpose, (E) of the occurrence of (but not the nature of or details
concerning) any event or the existence of any fact (a "Material Event") as
a result of which any Shelf Registration Statement shall contain any 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 not
misleading, or any Prospectus shall contain any 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 the light of the
circumstances under which they were made, not misleading (provided,
however, that no notice by the Company shall be required pursuant to this
clause (E) in the event that the Company either promptly files a prospectus
supplement to update the Prospectus or a Form 8-K or other appropriate
Exchange Act report that is incorporated by reference into the Shelf
Registration Statement, which, in either case, contains the requisite
information with respect to such Material Event that results in such Shelf
Registration Statement no longer containing any untrue statement of
material fact or omitting to state a material fact necessary to make the
statements contained therein not misleading), (F) of the determination by
the Company that a post-effective amendment to the Shelf Registration
Statement will be filed with the Commission,
9
which notice may, at the discretion of the Company (or as required pursuant
to Section 3(b)), state that it constitutes a Deferral Notice, in which
event the provisions of Section 3(b) shall apply or (G) at any time when a
Prospectus is required to be delivered under the Securities Act, that the
Shelf Registration Statement, Prospectus, Prospectus amendment or
supplement or post-effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder;
(v) prior to any public offering of the Registrable Securities
pursuant to the Shelf Registration Statement, use their reasonable best
efforts to register or qualify, or cooperate with the Notice Holders of
Securities included therein and their respective counsel in connection with
the registration or qualification of, such Securities for offer and sale
under the securities or blue sky laws of such jurisdictions as any such
Notice Holders 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 the Shelf Registration
Statement; prior to any public offering of the Registrable Securities
pursuant to the Shelf Registration Statement, use its reasonable efforts to
keep each such registration or qualification (or exemption therefrom)
effective during the Effective Period in connection with such Notice
Holder's offer and sale of Registrable Securities pursuant to such
registration or qualification (or exemption therefrom) and do any and all
other acts or things necessary or advisable to enable the disposition in
such jurisdictions of such Registrable Securities in the manner set forth
in the Shelf Registration Statement and the related Prospectus; provided
that the Company and the Guarantors will not be required to qualify
generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service
of process or to taxation in any such jurisdiction where it is not then so
subject;
(vi) use its reasonable best efforts to prevent the issuance of,
and if issued, to obtain the withdrawal of any order suspending the
effectiveness of the Shelf Registration Statement or, in the event of an
objection of the SEC pursuant to Rule 401(g)(2), promptly file an amendment
to such Shelf Registration Statement on the proper form, and to lift any
suspension of the qualification of any of the Registrable Securities for
sale in any jurisdiction in which they have been qualified for sale, in
each case at the earliest practicable date;
(vii) upon reasonable notice, for a reasonable period prior to
the filing of the Shelf Registration Statement, and throughout the
Effective Period, (i) make reasonably available for inspection by a
representative of, and Special Counsel acting for, Majority Holders of the
Securities being sold and any underwriter (and its counsel) participating
in any disposition of Securities pursuant to such Shelf Registration
Statement, all relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries and (ii) use
reasonable best efforts to have their officers, directors, employees,
accountants and counsel supply all relevant information reasonably
requested by such representative, Special Counsel or any such underwriter
in connection with such Shelf Registration Statement;
(viii) if requested by Majority Holders of the Securities being
sold in an underwriting, their Special Counsel or the managing underwriters
(if any) in connection with such Shelf Registration Statement, use their
reasonable best efforts to cause (i) their counsel to deliver an opinion
relating to the Shelf Registration Statement and the Securities in
customary form, (ii) their officers to execute and deliver all customary
documents and certificates requested by the Majority Holders of the
Securities being sold, their Special Counsel or the managing underwriters
(if any) and (iii) their independent registered public accounting firm to
provide a letter confirming that they are an independent registered public
accounting firm within the rules and regulations
10
adopted by the SEC and the Public Accounting Oversight Board (United
States) and as required by the Securities Act, substantially in the form of
the letter delivered to the Initial Purchaser pursuant to Section 6(h) of
the Purchase Agreement, with, in the case of an amendment or supplement
that includes audited financial information, such changes as may be
necessary to reflect the amended or supplemented financial information.
(ix) if reasonably requested by the Initial Purchaser or any
Notice Holder, promptly incorporate in a prospectus supplement or
post-effective amendment to the Shelf Registration Statement such
information as the Initial Purchaser or such Notice Holder shall, on the
basis of a written opinion of nationally-recognized counsel experienced in
such matters, determine to be required to be included therein by applicable
law and make any required filings of such prospectus supplement or such
post-effective amendment; provided, that the Company shall not be required
to take any actions under this Section 3(a)(ix) that are not, in the
reasonable opinion of counsel for the Company, in compliance with
applicable law;
(x) promptly furnish to each Notice Holder and the Initial
Purchaser, upon their request and without charge, at least one (1)
conformed copy of the Shelf Registration Statement and any amendments
thereto, including financial statements but excluding schedules, all
documents incorporated or deemed to be incorporated therein by reference
and all exhibits; provided, however, that the Company shall have no
obligation to deliver to Notice Holders or the Initial Purchaser a copy of
any amendment consisting exclusively of an Exchange Act report or other
Exchange Act filing otherwise publicly available on the Company's website;
(xi) during the Effective Period, deliver to each Notice Holder
in connection with any sale of Registrable Securities pursuant to the Shelf
Registration Statement, without charge, as many copies of the Prospectus
relating to such Registrable Securities (including each preliminary
prospectus) and any amendment or supplement thereto as such Notice Holder
may reasonably request; and the Company hereby consents (except during such
periods that a Deferral Notice is outstanding and has not been revoked) to
the use of such Prospectus or each amendment or supplement thereto by each
Notice Holder in connection with any offering and sale of the Registrable
Securities covered by such Prospectus or any amendment or supplement
thereto in the manner set forth therein; and
(xii) cooperate with the Notice Holders of Securities to
facilitate the timely preparation and delivery of certificates representing
Securities to be sold pursuant to the Shelf Registration Statement free of
any restrictive legends and in such denominations and registered in such
names as the Holders thereof may request in writing at least two business
days prior to sales of Securities pursuant to such Shelf Registration
Statement; provided that nothing herein shall require the Company to
deliver certificated Notes to any beneficial holder of Notes except as
required by the Indenture.
(b) Upon (A) the issuance by the Commission of a stop order suspending
the effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section
8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the
existence of any Material Event as a result of which the Shelf Registration
Statement shall contain any 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 not misleading, or any Prospectus shall contain any
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 the light of the circumstances under which they were made, not
misleading, or (C) the occurrence or existence of any corporate development
that, in the discretion of the Company, makes it appropriate to suspend the
availability of the Shelf Registration
11
Statement and the related Prospectus, the Company will (i) in the case of
clause (B) above, subject to the third sentence of this provision, as
promptly as is practicable prepare and file a post-effective amendment to
such Shelf Registration Statement or a supplement to the related Prospectus
or any document incorporated therein by reference or file any other
required document that would be incorporated by reference into such Shelf
Registration Statement and Prospectus so that such Shelf Registration
Statement does not contain any 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 not misleading, and such Prospectus does not
contain any 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 the light of the circumstances under which they were
made, not misleading, as thereafter delivered (or, to the extent permitted
by law, made available) to the purchasers of the Registrable Securities
being sold thereunder, and, in the case of a post-effective amendment to
the Shelf Registration Statement, subject to the third sentence of this
provision, use reasonable efforts to cause it to be declared effective or
otherwise become effective as promptly as is practicable, and (ii) give
notice to the Notice Holders that the availability of the Shelf
Registration Statement is suspended (a "Deferral Notice"). Upon receipt of
any Deferral Notice, each Notice Holder agrees not to sell any Registrable
Securities pursuant to the Shelf Registration Statement until such Notice
Holder's receipt of copies of the supplemented or amended Prospectus
provided for in clause (i) above, or until it is advised in writing by the
Company that the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus. The Company will use its
reasonable best efforts to ensure that the use of the Prospectus may be
resumed (x) in the case of clause (A) above, as promptly as is practicable,
(y) in the case of clause (B) above, as soon as, in the sole judgment of
the Company, public disclosure of such Material Event would not be
prejudicial to or contrary to the interests of the Company or, if necessary
to avoid unreasonable burden or expense, as soon as practicable thereafter
and (z) in the case of clause (C) above, as soon as, in the discretion of
the Company, such suspension is no longer appropriate; provided that the
period during which the availability of the Shelf Registration Statement
and any Prospectus is suspended (the "Deferral Period"), without the
Company incurring any obligation to pay Additional Interest pursuant to
Section 2(d), shall not exceed 120 days in the aggregate in any 12 month
period.
(c) Each Holder of Registrable Securities agrees that upon receipt of
any Deferral Notice from the Company, such Holder shall forthwith
discontinue (and cause any placement or sales agent or underwriters acting
on their behalf to discontinue) the disposition of Registrable Securities
pursuant to the registration statement applicable to such Registrable
Securities until such Holder (i) shall have received copies of such amended
or supplemented Prospectus and, if so directed by the Company, such Holder
shall deliver to the Company (at the Company's expense) all copies, other
than permanent file copies, then in such Holder's possession of the
Prospectus covering such Registrable Securities at the time of receipt of
such notice or (ii) shall have received notice from the Company that the
disposition of Registrable Securities pursuant to the Shelf Registration
may continue.
(d) The Company and the Guarantors shall, so long as any Registrable
Securities remain outstanding, cause each Additional Guarantor upon the
creation or acquisition by the Company of such Additional Guarantor, to (i)
execute and deliver a supplemental indenture to the Indenture and (ii)
deliver to the Trustee an opinion of counsel to the effect that (A) the
supplemental indenture has been duly executed and authorized and (B) the
supplemental indenture constitutes a valid, binding and enforceable
obligation of such Additional Guarantor, except insofar as enforcement
thereof may be limited by bankruptcy, insolvency or similar laws
(including, without limitation, all laws relating to fraudulent transfers)
and except insofar as enforcement thereof is subject to general principles
of equity.
12
(e) The Company may require each Holder of Registrable Securities as
to which any registration pursuant to Section 2(a) is being effected to
furnish to the Company such information regarding such Holder and such
Holder's intended method of distribution of such Registrable Securities as
the Company may from time to time reasonably request in writing, but only
to the extent that such information is required in order to comply with the
Securities Act. Each such Holder agrees to notify the Company as promptly
as practicable of any inaccuracy or change in information previously
furnished by such Holder to the Company or of the occurrence of any event
in either case as a result of which any Prospectus relating to such
registration contains or would contain an untrue statement of a material
fact regarding such Holder or such Holder's intended method of disposition
of such Registrable Securities or omits to state any material fact
regarding such Holder or such Holder's intended method of disposition of
such Registrable Securities required to be stated therein or necessary to
make the statements therein not misleading, and promptly to furnish to the
Company any additional information required to correct and update any
previously furnished information or required so that such Prospectus shall
not contain, with respect to such Holder or the disposition of such
Registrable Securities, an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(f) The Company shall comply with all applicable rules and regulations
of the Commission and make generally available to its securityholders
earning statements (which need not be audited) satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than (i) 40 days after
the end of any 12-month period (or 60 days after the end of any 12-month
period if such period is a fiscal year) if the Company is at such time an
"accelerated filer" and (ii) 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) if the Company is not an "accelerated filer" commencing on the first
day of the first fiscal quarter of the Company commencing after the
effective date of the Shelf Registration Statement, which statements shall
cover said 12-month periods.
(g) The Company shall provide a CUSIP number for all Registrable
Securities covered by the Shelf Registration Statement not later than the
initial effective date of such Shelf Registration Statement and provide the
Trustee for the Notes and the transfer agent for the Shares with printed
certificates for the Registrable Securities that are in a form eligible for
deposit with The Depository Trust Company.
(h) The Company shall use its reasonable efforts to provide such
information as is required for any filings required to be made with the
National Association of Securities Dealers, Inc.
(i) Until the expiration of two years after the Closing Date, the
Company will not, and will not permit any of its "affiliates" (as defined
in Rule 144) to, resell any of the Securities that have been reacquired by
any of them except pursuant to an effective registration statement under
the Securities Act.
(j) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act in a timely manner.
(k) The Company shall enter into such customary agreements and take
all such other necessary, reasonable and lawful actions in connection
therewith (including those requested by the Majority Holders of the
Registrable Securities covered by the Shelf Registration Statement) in
order to expedite or facilitate disposition of such Registrable Securities.
13
4. Holder's Obligations.
Each Holder agrees, by acquisition of the Registrable Securities, that no
Holder of Registrable Securities shall be entitled to sell any of such
Registrable Securities pursuant to the Shelf Registration Statement or to
receive a Prospectus relating thereto, unless such Holder has furnished the
Company with a Notice and Questionnaire as required pursuant to Section 2(c)
hereof (including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each Notice
Holder agrees promptly to furnish to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such Notice Holder not misleading and any other information regarding such
Notice Holder and the distribution of such Registrable Securities as may be
required to be disclosed in the Shelf Registration Statement under applicable
law or pursuant to Commission comments. Each Holder further agrees not to sell
any Registrable Securities pursuant to the Shelf Registration Statement without
delivering, or causing to be delivered, a Prospectus to the purchaser thereof
and, following termination of the Effective Period, to notify the Company,
within 10 business days of a request by the Company, of the amount of
Registrable Securities sold pursuant to the Shelf Registration Statement and, in
the absence of a response, the Company may assume that all of the Holder's
Registrable Securities were so sold.
5. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the Company's performance
of or compliance with this Agreement, including, but not limited to, (a) all
Commission and any NASD registration and filing fees and expenses, (b) all fees
and expenses in connection with the qualification of the Securities for offering
and sale under the State securities and Blue Sky laws referred to in Section
3(a)(v) hereof, including reasonable fees and disbursements of one counsel for
the placement agent or underwriters, if any, in connection with such
qualifications, (c) all expenses relating to the preparation, printing,
distribution and reproduction of the Shelf Registration Statement, the related
Prospectus and each amendment or supplement to each of the foregoing, the
certificates representing the Securities and all other documents relating
hereto, (d) fees and expenses of the Trustee under the Indenture, any escrow
agent or custodian, and of the registrar and transfer agent for the Shares, (e)
fees, disbursements and expenses of counsel and independent certified public
accountants of the Company (including the expenses of any opinions or "cold
comfort" letters required by or incident to such performance and compliance) and
(f) reasonable fees, disbursements and expenses of not more than one counsel for
the Holders of Registrable Securities retained in connection with the Shelf
Registration Statement, as selected by the Company (unless reasonably objected
to by the Majority Holders of the Registrable Securities being registered, in
which case the Majority Holders shall select such counsel for the Holders)
("Special Counsel"), and fees, expenses and disbursements of any other Persons,
including special experts, retained by the Company in connection with such
registration (collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any Holder of Registrable
Securities or any underwriter or placement agent therefor, the Company shall
reimburse such Person for the full amount of the Registration Expenses so
incurred, assumed or paid promptly after receipt of a documented request
therefor. Notwithstanding the foregoing, the Holders of the Registrable
Securities being registered shall pay all underwriting discounts and commissions
and placement agent fees and commissions attributable to the sale of such
Registrable Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such Holders (severally or jointly), other than
the counsel and experts specifically referred to above.
6. Indemnification.
(a) The Company and each of the Guarantors shall jointly and severally
indemnify and hold harmless each Holder (including, without limitation, the
Initial Purchaser), its affiliates, their
14
respective officers, directors, employees, representatives and agents, and
each person, if any, who controls such Holder within the meaning of the
Securities Act or the Exchange Act (collectively referred to for purposes
of this Section 6 and Section 7 as a Holder) from and against any loss,
claim, damage or liability, joint or several, or any action in respect
thereof (including, without limitation, any loss, claim, damage, liability
or action relating to purchases and sales of Securities), to which that
Holder may become subject, whether commenced or threatened, under the
Securities Act, the Exchange Act, any other federal or state statutory law
or regulation, at common law or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in any
such Registration Statement, (ii) any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus, any Free Writing
Prospectus or any "issuer information" ("Issuer Information") filed or
required to be filed pursuant to Rule 433(d) under the Securities Act or
(ii) 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, and shall reimburse each Holder promptly upon demand for any
legal or other expenses reasonably incurred by that Holder in connection
with investigating or defending or preparing to defend against or appearing
as a third party witness in connection with any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
the Company and the Guarantors shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out
of, or is based upon, an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon
and in conformity with any information provided by a Holder in its most
recent Notice and Questionnaire; and provided, further, that with respect
to any such untrue statement in or omission from any related preliminary
prospectus, the indemnity agreement contained in this Section 6(a) shall
not inure to the benefit of any Holder from whom the person asserting any
such loss, claim, damage, liability or action received Securities to the
extent that such loss, claim, damage, liability or action of or with
respect to such Holder results from the fact that both (A) a copy of the
final prospectus was not sent or given to such person at or prior to the
written confirmation of the sale of such Securities to such person and (B)
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 or any Guarantor with Section 4. This indemnity agreement shall be
in addition to any liability that the Company or the Guarantor may
otherwise have.
The Company and the Guarantors also shall jointly and severally
indemnify and hold harmless as provided in this Section 6(a) or contribute as
provided in Section 7 hereof with respect to any loss, claim, damage, liability
or action of each underwriter, if any, of Securities registered under the Shelf
Registration Statement, its affiliates, their respective officers, directors,
employees, representatives and agents, and each person, if any, who controls
such underwriter within the meaning of the Securities Act or the Exchange Act on
substantially the same basis as that of the indemnification of the selling
Holders provided in this paragraph (a) and shall, if requested by any Holder,
enter into an underwriting agreement reflecting such agreement.
(b) Each Holder shall indemnify and hold harmless the Company, each
Guarantor and their respective affiliates, their respective officers,
directors, employees, representatives and agents, and each person, if any,
who controls the Company or any Guarantor within the meaning of the
Securities Act or the Exchange Act (collectively referred to for purposes
of this Section 6(b) and Section 7 as the Company), from and against any
loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company may become subject, whether commenced
or threatened, under the Securities Act, the Exchange Act, any other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or
is based upon, (i) any untrue statement or alleged untrue statement of a
material fact
15
contained in any such Registration Statement or any prospectus forming part
thereof or in any amendment or supplement thereto or (ii) the 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, but in
each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with any information furnished to the Company by such Holder in
its most recent Notice and Questionnaire, and shall reimburse the Company
for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending or preparing to defend against
or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that no such Holder shall be liable for any indemnity claims
hereunder in excess of the amount of net proceeds received by such Holder
from the sale of Securities pursuant to such Shelf Registration Statement.
This indemnity agreement will be in addition to any liability which any
such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 6(a) or 6(b), notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 6 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 party
shall not relieve it from any liability which it may have to an indemnified
party otherwise than under this Section 6. If any such claim or action
shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall
not be liable to the indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than the reasonable costs of
investigation; provided, however, that an indemnified party shall have the
right to employ its own counsel in any such action, but the fees, expenses
and other charges of such counsel for the indemnified party will be at the
expense of such indemnified party unless (1) the employment of counsel by
the indemnified party has been authorized in writing by the indemnifying
party, (2) the indemnified party has reasonably concluded (based upon
advice of counsel to the indemnified party) that there may be legal
defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, (3) a
conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party
(in which case the indemnifying party will not have the right to direct the
defense of such action on behalf of the indemnified party) or (4) the
indemnifying party has not in fact employed counsel reasonably satisfactory
to the indemnified party to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action,
in each of which cases the reasonable fees, disbursements and other charges
of counsel will be at the expense of the indemnifying party or parties. It
is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and other
charges of more than one separate firm of attorneys (in addition to any
local counsel) at any one time for all such indemnified party or parties.
Each indemnified party, as a condition of the indemnity agreements
contained in Sections 6(a) and 6(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if
16
there be a final judgment for the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement
or judgment or if the indemnifying party has not paid the expenses and fees
for which it is liable 20 days after notice by the indemnified party of
request for reimbursement. No indemnifying party shall, without the prior
written consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any settlement of any pending or threatened
proceeding 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 claims that are the subject matter
of such proceeding and (ii) does not include a statement or admission of
fault, culpability or a failure to act, by or on behalf of the indemnified
party.
(d) The provisions of this Section 6 and Section 7 shall remain in
full force and effect, regardless of any investigation made by or on behalf
of any Holder, the Company, the Guarantors or any of the indemnified
Persons referred to in this Section 6 and Section 7, and shall survive the
sale by a Holder of securities covered by the Shelf Registration Statement.
7. Contribution.
If the indemnification provided for in Section 6 is unavailable or
insufficient to hold harmless an indemnified party under Section 6(a) or 6(b),
then each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Guarantors from the offering and sale of the
Notes, on the one hand, and a Holder with respect to the sale by such Holder of
Securities, on the other, or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company and each of the Guarantors on the one hand and
such Holder on the other with respect to the statements or omissions that
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Company and each of the Guarantors on the one hand and a Holder
on the other with respect to such offering and such sale shall be deemed to be
in the same proportion as the total net proceeds from the offering of the Notes
(before deducting expenses) received by or on behalf of the Company and each of
the Guarantors, on the one hand, and the total discounts and commissions
received by such Holder with respect to the Securities, on the other, bear to
the total gross proceeds from the sale of Securities. The relative fault 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 the Company and each of the Guarantors or information
supplied by the Company and each of the Guarantors on the one hand or to any
information contained in the relevant Notice and Questionnaire supplied by such
Holder on the other, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The parties hereto agree that it would not be just and
equitable if contributions pursuant to this Section 7 were to be determined by
pro rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 7
shall be deemed to include, for purposes of this Section 7, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 7, an indemnifying party that is
a Holder of Securities shall not be required to contribute any amount in excess
of the amount by which the total price at which the Securities sold by such
indemnifying party to any purchaser exceeds the amount of any damages which such
indemnifying party has otherwise paid or become liable to pay by
17
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 7 are several and not joint.
8. Rule 144A and Rule 144.
So long as any Registrable Securities remain outstanding, the Company shall
use its reasonable best efforts to file the reports required to be filed by it
under Rule 144A(d)(4) under the Securities Act and the Exchange Act in a timely
manner and, if at any time the Company is not required to file such reports, it
will, upon the written request of any Holder of Registrable Securities, make
publicly available other information so long as necessary to permit sales of
such Holder's securities pursuant to Rules 144 and 144A. The Company and the
Guarantors covenant that they will take such further action as any Holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rules 144 and 144A (including, without limitation, the requirements
of Rule 144A(d)(4)). Upon the written request of any Holder of Registrable
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 8 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
9. Miscellaneous.
(a) 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, unless the Company has
obtained the written consent of Majority Holders. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
Securities are being sold pursuant to the Shelf Registration Statement and
that does not directly or indirectly affect the rights of other Holders may
be given by Holders of a majority in aggregate amount of the Securities
being sold by such Holders pursuant to the Shelf Registration Statement.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telecopier or air courier guaranteeing next-day delivery:
(i) If to the Company or the Guarantors, initially at the address
set forth in the Purchase Agreement;
(ii) If to the Initial Purchaser, initially at its address set
forth in the Purchase Agreement; and
(iii) If to a Holder, to the address of such Holder set forth in
the security register, the Notice and Questionnaire or other records
of the Company.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day
after being delivered to a next-day air courier; five business days after
being deposited in the mail; and when receipt is acknowledged by the
recipient's telecopier machine, if sent by telecopier.
18
(c) Successors and Assigns. This Agreement shall be binding upon the
Company, the Guarantors and their respective successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopier) 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.
(e) Definition of Terms. For purposes of this Agreement, (a) the term
"business day" means any day on which the New York Stock Exchange, Inc. is
open for trading, (b) the term "subsidiary" has the meaning set forth in
Rule 405 under the Securities Act and (c) except where otherwise expressly
provided, the term "affiliate" has the meaning set forth in Rule 405 under
the Securities Act.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) Remedies. In the event of a breach by the Company or any of the
Guarantors or by any Holder of any of their respective obligations under
this Agreement, each Holder or the Company or any Guarantor, as the case
may be, in addition to being entitled to exercise all rights granted by
law, including recovery of damages (other than the recovery of damages for
a breach by the Company or any Guarantor of their obligations under Section
2 hereof for which Additional Interest have been paid pursuant to Section 3
hereof), will be entitled to specific performance of its rights under this
Agreement. The Company, each Guarantor and each Holder agree that monetary
damages would not be adequate compensation for any loss incurred by reason
of a breach by it of any of the provisions of this Agreement and hereby
further agree that, in the event of any action for specific performance in
respect of such breach, it shall waive the defense that a remedy at law
would be adequate.
(i) No Inconsistent Agreements. Each of the Company and each Guarantor
represents, warrants and agrees that (i) it has not entered into, and shall
not, on or after the date of this Agreement, enter into any agreement that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof, (ii) it has not previously
entered into any agreement which remains in effect granting any
registration rights with respect to any of its debt securities to any
person and (iii) without limiting the generality of the foregoing, without
the written consent of the Holders of a majority in aggregate principal
amount of the then outstanding Registrable Securities, it shall not grant
to any person the right to request the Company to register any debt
securities of the Company under the Securities Act unless the rights so
granted are not in conflict or inconsistent with the provisions of this
Agreement.
(j) No Piggyback on Registrations. Neither the Company nor the
Guarantors nor any of their respective security holders (other than the
Holders of Registrable Securities in such capacity) shall have the right to
include any securities of the Company in any Shelf Registration Statement
other than Registrable Securities.
(k) Severability. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect
19
and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable best efforts to find and employ an
alternative means to achieve the same or substantially the same result as
that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(l) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made
pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf
of any Holder of Registrable Securities, any director, officer or partner
of such Holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and
shall survive delivery of and payment for the Registrable Securities
pursuant to the Purchase Agreement and the transfer and registration of
Registrable Securities by such Holder.
(m) Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage 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.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us a counterpart hereof, whereupon this instrument
will become a binding agreement among the Company, the Guarantors and the
Initial Purchaser in accordance with its terms.
Very truly yours,
CALGON CARBON CORPORATION
By: /s/ Leroy M. Ball
------------------------------------
Name: Leroy M. Ball
Title: Senior Vice President and Chief
Financial Officer
CALGON CARBON INVESTMENTS, INC.
By: /s/ Leroy M. Ball
------------------------------------
Name: Leroy M. Ball
Title: Vice President and Secretary
BSC COLUMBUS, LLC
By: /s/ Leroy M. Ball
------------------------------------
Name: Leroy M. Ball
Title: Manager
CCC COLUMBUS, LLC
By: /s/ Leroy M. Ball
------------------------------------
Name: Leroy M. Ball
Title: Manager
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
J.P. MORGAN SECURITIES INC.
By: /s/ Santosh Sreenivasan
---------------------------------
Name: Santosh Sreenivasan
Title: Vice President