Exhibit 4.1
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REGISTRATION RIGHTS AGREEMENT
Dated as of December 19, 2002
by and among
Ball Corporation
Guarantors Parties Hereto
and
Lehman Brothers Inc.
Deutsche Bank Securities Inc.
Banc of America Securities LLC
Banc One Capital Markets, Inc.
BNP Paribas Securities Corp.
Dresdner Kleinwort Wasserstein-Grantchester, Inc.
McDonald Investments Inc.
SunTrust Capital Markets, Inc.
and
Wells Fargo Brokerage Services, LLC
This Registration Rights Agreement (this "Agreement") is made and entered into
as of December 19, 2002, by and among Ball Corporation, an Indiana corporation
(the "Company"), each of the Guarantors listed on Exhibit A hereto (each a
"Guarantor", and together, the "Guarantors") and Lehman Brothers Inc. ("Lehman
Brothers"), Deutsche Bank Securities Inc., Banc of America Securities Inc.,
Banc One Capital Markets, Inc., BNP Paribas Securities Corp., Dresdner
Kleinwort Wasserstein-Grantchester, Inc., McDonald Investments Inc., SunTrust
Capital Markets, Inc. and Wells Fargo Brokerage Services, LLC (together, the
"Initial Purchasers"), each of whom has agreed to purchase the Company's 6
7/8% Senior Notes due 2012 (the "Series A Notes") pursuant to the Purchase
Agreement, dated December 5, 2002, (the "Purchase Agreement"), by and among
the Company, the Guarantors and the Initial Purchasers. In order to induce the
Initial Purchasers to purchase the Series A Notes, the Company and the
Guarantors have agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
obligations of the Initial Purchasers set forth in Section 4 of the Purchase
Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
"Act": The Securities Act of 1933, as amended.
"Affiliate": As defined in Rule 144A.
"Business Day": Any day except a Saturday, Sunday or other day in the
City of New York, or in the city of the corporate trust office of the Trustee,
on which banks are authorized to close.
"Broker-Dealer": Any broker or dealer registered under the Exchange
Act.
"Broker-Dealer Transfer Restricted Securities": Series B Notes that
are acquired by a Broker-Dealer in the Exchange Offer in exchange for Series A
Notes that such Broker-Dealer acquired for its own account as a result of
market making activities or other trading activities (other than Series A
Notes acquired directly from the Company or any of its affiliates).
"Closing Date": The date hereof.
"Commission": The Securities and Exchange Commission.
"Consummate": An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series B Notes to be issued in the Exchange Offer, (b) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum
period required pursuant to Section 3(b) hereof and (c) the delivery by the
Company to the Registrar under the Indenture of Series B Notes in the same
aggregate principal amount as the aggregate principal amount of Series A Notes
tendered by Holders thereof pursuant to the Exchange Offer.
"Definitive Notes": As defined in the Indenture.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exchange Offer": The registration by the Company under the Act of
the Series B Notes pursuant to the Exchange Offer Registration Statement
pursuant to which the Company shall offer the Holders of all outstanding
Transfer Restricted Securities the opportunity to exchange all such
outstanding Transfer Restricted Securities for Series B Notes in an aggregate
principal amount equal to the aggregate principal amount of the Transfer
Restricted Securities tendered in such exchange offer by such Holders.
"Exchange Offer Registration Statement": The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
"Exempt Resales": The transactions in which the Initial Purchasers
propose to sell the Series A Notes to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Act, and pursuant to
Regulation S.
"Global Note": As defined in the Indenture.
"Holders": As defined in Section 2 hereof.
"Indemnified Holder": As defined in Section 8(a) hereof.
"Indenture": The Indenture, dated the Closing Date, among the
Company, the Guarantors and The Bank of New York, as trustee (the "Trustee"),
pursuant to which the Notes are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.
"Interest Payment Date": As defined in the Indenture and the Notes.
"NASD": National Association of Securities Dealers, Inc.
"Notes": The Series A Notes and the Series B Notes.
"Person": An individual, partnership, corporation, trust,
unincorporated organization, or a government or agency or political
subdivision thereof.
"Prospectus": The prospectus prepared pursuant to this Agreement and
included in a Registration Statement at the time such Registration Statement
is declared effective, as amended or supplemented by any prospectus supplement
and by all other amendments thereto, including post-effective amendments, and
all material incorporated by reference into such Prospectus.
"Record Holder": With respect to any Interest Payment Date, each
Person who is a Holder of Notes on the record date with respect to the
Interest Payment Date on which such Interest Payment Date shall occur.
"Registration Default": As defined in Section 5 hereof.
"Registration Statement": Any registration statement of the Company
and the Guarantors relating to (a) an offering of Series B Notes pursuant to
an Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, in each case, (i)
which is filed pursuant to the provisions of this Agreement and (ii) including
the Prospectus included therein, all amendments and supplements thereto
(including post-effective amendments) and all exhibits and material
incorporated by reference therein.
"Regulation S": Regulation S promulgated under the Act.
"Restricted Broker-Dealer": Any Broker-Dealer which holds
Broker-Dealer Transfer Restricted Securities.
"Series B Notes": The Company's 6 7/8% Series B Notes due 2012 to be
issued pursuant to the Indenture (i) in the Exchange Offer or (ii) upon the
request of any Holder of Series A Notes covered by a Shelf Registration
Statement, in exchange for such Series A Notes.
"Shelf Registration Statement": As defined in Section 4 hereof.
"TIA": The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
"Transfer Restricted Securities": Each Note, until the earliest to
occur of (a) the date on which such Note is exchanged in the Exchange Offer by
a Person other than a Broker-Dealer and entitled to be resold to the public by
the Holder thereof without complying with the prospectus delivery requirements
of the Act, (b) the date on which such Note has been disposed of in accordance
with a Shelf Registration Statement, (c) the date on which such Note is
disposed of by a Broker-Dealer pursuant to the "Plan of Distribution"
contemplated by the Exchange Offer Registration Statement (including delivery
of the Prospectus contained therein), (d) the date on which such Note is
distributed to the public pursuant to Rule 144 under the Act, or (e) the Note
ceases to be outstanding.
"Underwritten Registration" or "Underwritten Offering": A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "Holder") whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law (after the procedures set forth in Section 6(a)(i) below have been
complied with), the Company and the Guarantors shall (i) use all commercially
reasonable efforts to cause to be filed with the Commission no later than 90
days after the Closing Date, the Exchange Offer Registration Statement, (ii)
use all commercially reasonable efforts to cause such Exchange Offer
Registration Statement to become effective no later than 180 days after the
Closing Date, (iii) in connection with the foregoing, use all commercially
reasonable efforts to (A) file all pre-effective amendments to such Exchange
Offer Registration Statement as may be reasonably necessary in order to cause
such Exchange Offer Registration Statement to become effective, (B) file, if
applicable, a post-effective amendment to such Exchange Offer Registration
Statement pursuant to Rule 430A under the Act and (C) cause all filings which
to the knowledge of the Company and the Guarantors are reasonably necessary,
if any, in connection with the registration and qualification of the Series B
Notes to be made under the Blue Sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer, and (iv) upon the
effectiveness of such Exchange Offer Registration Statement, use all
commercially reasonable efforts to commence and Consummate the Exchange Offer
within 30 Business Days of such effectiveness. The Exchange Offer shall be on
the appropriate form permitting registration of the Series B Notes to be
offered in exchange for the Series A Notes that are Transfer Restricted
Securities and to permit sales of Broker-Dealer Transfer Restricted Securities
by Restricted Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall use all commercially
reasonable efforts to cause the Exchange Offer Registration Statement to be
effective continuously, and shall keep the Exchange Offer open for a period of
not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in
no event shall such period be less than 20 Business Days. The Company and the
Guarantors shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the Notes shall be
included in the Exchange Offer Registration Statement. The Company and the
Guarantors shall use all commercially reasonable efforts to cause the Exchange
Offer to be Consummated on or prior to 30 Business Days after the Exchange
Offer Registration Statement has become effective.
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Restricted Broker-Dealer who holds Series A Notes that are
Transfer Restricted Securities and that were acquired for the account of such
Broker-Dealer as a result of market-making activities or other trading
activities, may exchange such Series A Notes (other than Transfer Restricted
Securities acquired directly from the Company or any affiliate of the Company)
pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to
be an "underwriter" within the meaning of the Act and must, therefore, deliver
a prospectus meeting the requirements of the Act in connection with its
initial sale of each Series B Note received by such Broker-Dealer in the
Exchange Offer, which prospectus delivery requirement may be satisfied by the
delivery by such Broker-Dealer of the Prospectus contained in the Exchange
Offer Registration Statement. Such "Plan of Distribution" section shall also
contain all other information with respect to such sales of Broker-Dealer
Transfer Restricted Securities by Restricted Broker-Dealers that the
Commission may require in order to permit such sales pursuant thereto, but
such "Plan of Distribution" shall not name any such Broker-Dealer or disclose
the amount of Notes held by any such Broker-Dealer, except to the extent
required by the Commission as a result of a change in policy after the date of
this Agreement.
The Company and the Guarantors shall use all commercially reasonable
efforts to keep the Exchange Offer Registration Statement continuously
effective, supplemented and amended as required by the provisions of Sections
6(a) and 6(c) below to the extent necessary to ensure that it is available for
sales of Broker-Dealer Transfer Restricted Securities by Restricted
Broker-Dealers, and to ensure that such Registration Statement conforms with
the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of
180 days from the date on which the Exchange Offer is Consummated.
The Company and the Guarantors shall promptly provide sufficient
copies of the latest version of such Prospectus to such Restricted
Broker-Dealers promptly upon request, at any time during such 180-day period
in order to facilitate such sales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company is not required to file an
Exchange Offer Registration Statement with respect to the Series B Notes or
(ii) the Company is not permitted to consummate the Exchange Offer because the
Exchange Offer is not permitted by applicable law or Commission policy (after
the procedures set forth in Section 6(a)(i) below have been complied with) or
(iii) if any Holder of Transfer Restricted Securities shall notify the Company
within 20 Days following the Consummation of the Exchange Offer that (A) such
Holder was prohibited by law or Commission policy from participating in the
Exchange Offer or (B) such Holder may not resell the Series B Notes acquired
by it in the Exchange Offer to the public without delivering a prospectus and
the Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder or (C) such Holder is
a Broker-Dealer and holds Series A Notes acquired directly from the Company or
one of its affiliates, then the Company and the Guarantors shall (x) use all
commercially reasonable efforts to cause to be filed on or prior to 60 days
after the date on which the Company determines that it is not required to file
the Exchange Offer Registration Statement pursuant to clause (i) above or 60
days after the date on which the Company receives the notice specified in
clause (ii) above a shelf registration statement pursuant to Rule 415 under
the Act (which may be an amendment to the Exchange Offer Registration
Statement (in either event, the "Shelf Registration Statement")), relating to
all Transfer Restricted Securities the Holders of which shall have provided
the information required pursuant to Section 4(b) hereof, and shall (y) use
their respective commercially reasonable efforts to cause such Shelf
Registration Statement to become effective on or prior to 90 days after the
date on which the Company becomes obligated to file such Shelf Registration
Statement. If, after the Company and the Guarantors have filed an Exchange
Offer Registration Statement which satisfies the requirements of Section 3(a)
above, the Company and the Guarantors are required to file and make effective
a Shelf Registration Statement solely because the Exchange Offer shall not be
permitted under applicable federal law, then the filing of the Exchange Offer
Registration Statement shall be deemed to satisfy the requirements of clause
(x) above. Such an event shall have no effect on the requirements of clause
(y) above. The Company and the Guarantors shall use their respective
commercially reasonable efforts to keep the Shelf Registration Statement
discussed in this Section 4(a) continuously effective, supplemented and
amended as required by and subject to the provisions of Sections 6(b) and (c)
hereof to the extent necessary to ensure that it is available for sales of
Transfer Restricted Securities by the Holders thereof entitled to the benefit
of this Section 4(a), and to ensure that it conforms with the requirements of
this Agreement, the Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of at least two years
(as extended pursuant to Section 6(c)(i)) following the date on which such
Shelf Registration Statement first becomes effective under the Act.
(b) Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such Holder
furnishes to the Company in writing, within 10 Business Days after receipt of
a request therefor, such information specified in Item 507 or 508, as
applicable, of Regulation S-K under the Act for use in connection with any
Shelf Registration Statement or Prospectus or preliminary Prospectus included
therein. Each Holder as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Company all information required to
be disclosed in order to make the information previously furnished to the
Company by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the date specified for such filing in
this Agreement, (ii) any such Registration Statement has not been declared
effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target Date"), (iii) the
Exchange Offer has not been Consummated within 30 Business Days after the
Effectiveness Target Date or (iv) any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter cease to be
effective or fail to be usable in connection with resales of Transfer
Restricted Securities during the period specified in this Agreement without
being succeeded immediately by a post-effective amendment to such Registration
Statement that cures such failure and that is itself declared effective
immediately (each such event referred to in clauses (i) through (iv), a
"Registration Default"), then the Company and the Guarantors hereby jointly
and severally agree to pay liquidated damages to each Holder of Transfer
Restricted Securities with respect to the first 90-day period immediately
following the occurrence of such Registration Default, in an amount equal to
$.05 per week per $1,000 principal amount of Transfer Restricted Securities
held by such Holder for each week or portion thereof that the Registration
Default continues. The amount of the liquidated damages shall increase by an
additional $.05 per week per $1,000 in principal amount of Transfer Restricted
Securities with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of liquidated
damages for all Registration Defaults of $.50 per week per $1,000 principal
amount of Transfer Restricted Securities. Notwithstanding anything to the
contrary set forth herein, (1) upon filing of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement), in the
case of (i) above, (2) upon the effectiveness of the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (ii) above, (3) upon Consummation of the Exchange
Offer, in the case of (iii) above, or (4) upon the filing of a post-effective
amendment to the Registration Statement or an additional Registration
Statement that causes the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement) to again be declared effective
or made usable in the case of (iv) above, the liquidated damages payable with
respect to the Transfer Restricted Securities as a result of such clause (i),
(ii), (iii) or (iv), as applicable, shall immediately cease.
All accrued liquidated damages shall be paid to holders of Global
Notes by wire transfer of immediately available funds or by federal funds
check and to Holders of Definitive Notes by wire transfer to the accounts
specified by them or by mailing checks to their registered addresses, if no
such accounts have been specified, on each Interest Payment Date. All
obligations of the Company and the Guarantors set forth in the preceding
paragraph that are outstanding with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such obligations with respect to such
security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company and the Guarantors shall use all commercially
reasonable efforts to comply with all applicable provisions of Section 6(c)
below, shall use their respective commercially reasonable efforts to effect
such exchange and to permit the sale of Broker-Dealer Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof, and shall comply with all of the following provisions:
(i) If, following the date hereof there has been published a change
in Commission policy with respect to exchange offers such as the Exchange
Offer, such that in the reasonable opinion of counsel to the Company there is
a substantial question as to whether the Exchange Offer is permitted by
applicable federal law, the Company and the Guarantors hereby agree to use all
commercially reasonable efforts to seek a no-action letter or other favorable
decision from the Commission allowing the Company and the Guarantors to
Consummate an Exchange Offer for such Series A Notes. The Company and the
Guarantors hereby agree to use all commercially reasonable efforts to pursue
the issuance of such a decision to the Commission staff level. In connection
with the foregoing, the Company and the Guarantors hereby agree to take all
such other actions as are requested by the Commission or otherwise required in
connection with the issuance of such decision, including without limitation
(A) participating in telephonic conferences with the Commission, (B)
delivering to the Commission staff an analysis prepared by counsel to the
Company setting forth the legal bases, if any, upon which such counsel has
concluded that such an Exchange Offer should be permitted and (C) diligently
pursuing a resolution (which need not be favorable) by the Commission staff of
such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer Restricted
Securities shall furnish, upon the request of the Company, prior to the
Consummation of the Exchange Offer, a written representation to the Company
and the Guarantors (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the effect that
(A) it is not an affiliate of the Company, (B) it is not engaged in, and does
not intend to engage in, and has no arrangement or understanding with any
person to participate in, a distribution of the Series B Notes to be issued in
the Exchange Offer and (C) it is acquiring the Series B Notes in its ordinary
course of business. Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Exchange Offer to participate in a
distribution of the securities to be acquired in the Exchange Offer (1) could
not under Commission policy as in effect on the date of this Agreement rely on
the position of the Commission enunciated in Morgan Stanley and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings Corporation (available May
13, 1988), as interpreted in the Commission's letter to Shearman & Sterling
dated July 2, 1993, and similar no-action letters (including, if applicable,
any no-action letter obtained pursuant to clause (i) above), and (2) must
comply with the registration and prospectus delivery requirements of the Act
in connection with a secondary resale transaction and that such a secondary
resale transaction must be covered by an effective registration statement
containing the selling security holder information required by Item 507 or
508, as applicable, of Regulation S-K if the resales are of Series B Notes
obtained by such Holder in exchange for Series A Notes acquired by such Holder
directly from the Company or an affiliate thereof.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company and the Guarantors shall, if requested by the
Commission, provide a supplemental letter to the Commission (A) stating that
the Company and the Guarantors are registering the Exchange Offer in reliance
on the position of the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988), Morgan Stanley and Co., Inc. (available
June 5, 1991) and, if applicable, any no-action letter obtained pursuant to
clause (i) above, (B) including a representation that neither the Company nor
any Guarantor has entered into any arrangement or understanding with any
Person to distribute the Series B Notes to be received in the Exchange Offer
and that, to the best of the Company's and each Guarantor's information and
belief, each Holder participating in the Exchange Offer is acquiring the
Series B Notes in its ordinary course of business and has no arrangement or
understanding with any Person to participate in the distribution of the Series
B Notes received in the Exchange Offer and (C) any other undertaking or
representation reasonably required by the Commission as set forth in any
no-action letter obtained pursuant to clause (i) above.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Guarantors shall comply with all
the provisions of Section 6(c) below and shall use their respective
commercially reasonable efforts to effect such registration to permit the sale
of the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof (as indicated in the
information furnished to the Company pursuant to Section 4(b) hereof), and
pursuant thereto the Company and the Guarantors will prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof within the time periods and otherwise in
accordance with the provisions hereof.
(c) General Provisions. In connection with any Registration Statement
and any related Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities (including, without limitation, any
Exchange Offer Registration Statement and the related Prospectus, to the
extent that the same are required to be available to permit sales of
Broker-Dealer Transfer Restricted Securities by Restricted Broker-Dealers),
the Company and the Guarantors shall:
(i) use their respective commercially reasonable efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or 4 of this
Agreement, as applicable. Upon the occurrence of any event that would cause
any such Registration Statement or the Prospectus contained therein (A) to
contain an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading or (B) not to be effective and
usable for resale of Transfer Restricted Securities during the period required
by this Agreement, the Company and the Guarantors shall file promptly an
appropriate amendment to such Registration Statement, (1) in the case of
clause (A), correcting any such untrue statement or omission, and (2) in the
case of clauses (A) and (B), use their respective commercially reasonable
efforts to cause such amendment to be declared effective and such Registration
Statement and the related Prospectus to become usable for their intended
purpose(s) as soon as reasonably practicable thereafter.
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be reasonably
necessary to keep the Registration Statement effective for the applicable
period set forth in Section 3 or 4 hereof, or such shorter period as will
terminate when all Transfer Restricted Securities covered by such Registration
Statement have been sold; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Act, and to comply in all material respects with Rules 424,
430A and 462, as applicable, under the Act in a timely manner during the
applicable period; and comply with the provisions of the Act with respect to
the disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or methods
of distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, selling Holders named in any
Registration Statement or Prospectus ("Named Holders") and any Restricted
Broker-Dealer (whether or not named in the Registration Statement) who has
requested copies of the Prospectus pursuant to the last paragraph of Section 3
hereof, or has otherwise identified itself as a Restricted Broker-Dealer to
the Company, promptly and, if requested by such Persons, confirm such advice
in writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any Registration
Statement or any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement
under the Act or of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering or sale in
any jurisdiction, or the initiation of any proceeding for any of the preceding
purposes, (D) of the existence of any fact or the happening of any event that
makes any statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any document incorporated
by reference therein untrue, or that requires the making of any additions to
or changes in the Registration Statement in order to make the statements
therein not misleading, or that requires the making of any additions to or
changes in the Prospectus in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. If at
any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Transfer Restricted
Securities under state securities or Blue Sky laws, the Company and the
Guarantors shall use their respective commercially reasonable efforts to
obtain the withdrawal or lifting of such order at the earliest possible time;
(iv) furnish to the Initial Purchasers, each Named Holder and each of
the underwriter(s) in connection with such sale, if any, before filing with
the Commission, copies of any Registration Statement or any Prospectus
included therein or any amendments or supplements to any such Registration
Statement or Prospectus (including all documents incorporated by reference
after the initial filing of such Registration Statement), which documents will
be subject to the reasonable review and comment of such Named Holders and
underwriter(s) in connection with such sale, if any, for a period of at least
five Business Days, and the Company will not file any such Registration
Statement or Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such documents
incorporated by reference) to which the Named Holders of the Transfer
Restricted Securities covered by such Registration Statement or the
underwriter(s) in connection with such sale, if any, shall reasonably object
within five Business Days after the receipt thereof. A Named Holder or
underwriter, if any, shall be deemed to have reasonably objected to such
filing if such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains an untrue statement of a
material fact or omits to state a fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or fails to comply with the applicable requirements of the Act;
(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus, provide
copies of such document to the Named Holders and to the underwriter(s) in
connection with such sale, if any, make the Company's and the Guarantors'
representatives available as may be reasonably necessary for discussion of
such document and other customary due diligence matters, and include such
information in such document prior to the filing thereof as such Named Holders
or underwriter(s), if any, reasonably may request;
(vi) make available at reasonable business hours for inspection in
the offices where such records are normally maintained by the Named Holders,
any managing underwriter participating in any disposition pursuant to such
Registration Statement and any attorney or accountant retained by such Named
Holders or any of such underwriter(s), all relevant financial and other
records, pertinent corporate documents and relevant properties of the Company
and the Guarantors subject to appropriate confidentiality agreements and cause
the Company's and the Guarantors' officers, directors and employees to supply
all information that is (a) reasonably requested by any Named Holder,
underwriter, attorney or accountant in connection with such Registration
Statement or any post-effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness and (b) customarily furnished in
transactions of the type contemplated by such Registration Statement;
(vii) if requested by any Named Holders or the underwriter(s) in
connection with such sale, if any, promptly include in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective amendment
if necessary, such information as such Named Holders and underwriter(s), if
any, may reasonably request to have included therein, including, without
limitation, information relating to the "Plan of Distribution" of the Transfer
Restricted Securities, information with respect to the principal amount of
Transfer Restricted Securities being sold to such underwriter(s), the purchase
price being paid therefor and any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon as
reasonably practicable after the Company is notified of the matters to be
included in such Prospectus supplement or post-effective amendment;
(viii) furnish to each Named Holder and each of the underwriter(s) in
connection with such sale, if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference therein
and all exhibits (including exhibits incorporated therein by reference);
(ix) deliver to each Named Holder and each of the underwriter(s), if
any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Company and the Guarantors hereby consent
to the use (in accordance with law) of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment or
supplement thereto;
(x) enter into such agreements (including an underwriting agreement)
and make such reasonable representations and warranties and take all such
other actions in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any Registration
Statement contemplated by this Agreement as may be reasonably requested by any
Holder of Transfer Restricted Securities or underwriter in connection with any
sale or resale pursuant to any Registration Statement contemplated by this
Agreement, which agreements must be in customary form, and in such connection,
whether or not an underwriting agreement is entered into and whether or not
the registration is an Underwritten Registration, the Company and the
Guarantors shall:
(A) furnish (or in the case of paragraphs (2) and (3), use
their commercially reasonable efforts to furnish) to each Named
Holder and each underwriter, if any, upon the effectiveness of the
Shelf Registration Statement:
(1) a certificate, dated the date of effectiveness
of the Shelf Registration Statement, signed on behalf of the
Company and each Guarantor by (x) the President or any Vice
President and (y) a principal financial or accounting
officer of the Company and such Guarantor, confirming, as of
the date thereof, the matters set forth in paragraphs 8(j)
of the Purchase Agreement;
(2) an opinion, dated the date of the effectiveness
of the Shelf Registration Statement, of counsel (which may
include the General Counsel of the Company) for the Company
and the Guarantors covering such matters as may be
reasonably requested, which shall be reasonably satisfactory
to the managing underwriters and Holders; and
(3) a customary "cold" comfort letter, dated as of
the date of effectiveness of the Shelf Registration
Statement, from the Company's independent accountants, in
the customary form and covering matters of the type
customarily covered in comfort letters to underwriters in
connection with primary underwritten offerings, and
affirming the matters set forth in the comfort letters
delivered pursuant to Section 8(i) of the Purchase
Agreement; and
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, in connection with any sale or resale
pursuant to any Shelf Registration Statement the indemnification
provisions and procedures of Section 8 hereof with respect to all
parties to be indemnified pursuant to said Section.
The above shall be done at each closing under such underwriting or
similar agreement, as and to the extent required thereunder, and if at any
time the representations and warranties of the Company and the Guarantors
contemplated in (A)(1) above cease to be true and correct, the Company and the
Guarantors shall so advise the underwriter(s), if any and the Named Holders
promptly and if requested by such Persons, shall confirm such advice in
writing;
(xi) prior to any public offering of Transfer Restricted Securities,
cooperate with the Named Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration and qualification of
the Transfer Restricted Securities under the securities or Blue Sky laws of
such jurisdictions as the Named Holders or underwriter(s), if any, may request
and do any and all other acts or things reasonably necessary or advisable to
enable the disposition in such jurisdictions of the Transfer Restricted
Securities covered by the applicable Registration Statement; provided,
however, that neither the Company nor any Guarantor shall be required to
register or qualify as a foreign corporation where it is not now so qualified
or to take any action that would subject it to the service of process in suits
or to taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so subject;
(xii) issue, upon the request of any Holder of Series A Notes covered
by any Shelf Registration Statement contemplated by this Agreement, Series B
Notes having an aggregate principal amount equal to the aggregate principal
amount of Series A Notes surrendered to the Company by such Holder in exchange
therefor or being sold by such Holder; such Series B Notes to be registered in
the name of such Holder or in the name of the purchaser(s) of such Notes, as
the case may be; in return, the Series A Notes held by such Holder shall be
surrendered to the Company for cancellation;
(xiii) in connection with any sale of Transfer Restricted Securities
that will result in such securities no longer being Transfer Restricted
Securities, cooperate with the Named Holders and each Restricted Broker-Dealer
and the underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to be
sold and not bearing any restrictive legends; and to register such Transfer
Restricted Securities in such denominations and such names as the Named
Holders, Restricted Broker-Dealers or the underwriter(s), if any, may request
at least two Business Days prior to such sale of Transfer Restricted
Securities;
(xiv) use their respective commercially reasonable efforts to cause
the disposition of the Transfer Restricted Securities covered by the
Registration Statement to be registered with or approved by such other
domestic governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof or the underwriter(s), if any, to consummate the
disposition of such Transfer Restricted Securities, subject to the proviso
contained in clause (xi) above;
(xv) subject to Section 6(c)(i), if any fact or event contemplated by
Section 6(c)(iii)(D) above shall exist or have occurred, prepare a supplement
or post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of
Transfer Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(xvi) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of a Registration Statement covering such
Transfer Restricted Securities and provide the Trustee under the Indenture
with printed certificates for the Transfer Restricted Securities which are in
a form eligible for deposit with the Depository Trust Company;
(xvii) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of the
NASD, and use their respective commercially reasonable efforts to cause such
Registration Statement to become effective and approved by such governmental
agencies or authorities as may be necessary to enable the Holders selling
Transfer Restricted Securities to consummate the disposition of such Transfer
Restricted Securities;
(xviii) otherwise use their respective commercially reasonable
efforts to make generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which need not be
audited) covering a twelve-month period beginning after the effective date of
the Registration Statement (as such term is defined in paragraph (c) of Rule
158 under the Act);
(xix) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement required by this
Agreement and, in connection therewith, cooperate with the Trustee and the
Holders of Notes to effect such changes to the Indenture as may be required
for such Indenture to be so qualified in accordance with the terms of the TIA;
and execute and use their respective commercially reasonable efforts to cause
the Trustee to execute, all documents that may be required to effect such
changes and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely manner; and
(xx) provide promptly to each Holder upon request each document filed
with the Commission pursuant to the requirements of Section 13 or Section
15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(i) or any notice from the Company of the existence of any fact of
the kind described in Section 6(c)(iii)(C) or 6(c)(iii)(D) hereof, such Holder
will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the applicable Registration Statement until such Holder's receipt
of the copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(xv) hereof, or until it is advised in writing by the Company that
the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus (the "Advice"). If so directed by the Company, each Holder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Transfer Restricted Securities that was current at the time of
receipt of either such notice. In the event the Company shall give any such
notice, the time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 6(c)(i) or Section 6(c)(iii)(D)
hereof to and including the date when each selling Holder covered by such
Registration Statement shall have received the copies of the supplemented or
amended Prospectus contemplated by Section 6(c)(xv) hereof or shall have
received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Guarantors'
performance of or compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses
(including filings made by any Purchaser or Holder with the NASD and its
counsel that may be required by the rules and regulations of the NASD); (ii)
all fees and expenses of compliance with federal securities and state Blue Sky
laws; (iii) all expenses of printing (including printing certificates for the
Series B Notes to be issued in the Exchange Offer and printing of
Prospectuses); (iv) all fees and disbursements of counsel for the Company and
the Guarantors; (v) all application and filing fees in connection with the
listing, if any, of the Notes on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and (vi) all fees and
disbursements of independent certified public accountants of the Company and
the Guarantors (including the expenses of any special audit and comfort
letters required by or incident to such performance).
The Company will, in any event, bear its and the Guarantors' internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Guarantors.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company and the
Guarantors will reimburse the Initial Purchasers and the Holders of Transfer
Restricted Securities being tendered in the Exchange Offer and/or resold
pursuant to the "Plan of Distribution" contained in the Exchange Offer
Registration Statement or registered pursuant to the Shelf Registration
Statement, as applicable, for the reasonable fees and expenses (which shall
not exceed $25,000 without the prior written consent of the Company) of not
more than one counsel for both, who shall be Latham & Watkins unless another
firm shall be chosen by the Holders of a majority in principal amount of the
Transfer Restricted Securities for whose benefit such Registration Statement
is being prepared. Each Holder shall pay all expenses of its counsel, except
as provided in this Section 7(b), all underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of such
Holder's Transfer Restricted Securities pursuant to a Shelf Registration
Statement.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors agree, jointly and severally, to
indemnify and hold harmless each Holder, its directors, officers and each
Person, if any, who controls such Holder (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act), from and against any and all
losses, claims, damages, liabilities, judgments, actions and expenses
(including without limitation, any reasonable legal or other expenses incurred
in investigating or defending any claim or action, or any investigation or
proceeding by any governmental agency or body, commenced or threatened)
directly or indirectly caused by, related to, based upon, arising out of or in
connection with untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement, preliminary prospectus or
Prospectus (or any amendment or supplement thereto) provided by the Company to
any Holder or any prospective purchaser of Series B Notes or registered Series
A Notes, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by an untrue statement or
omission or alleged untrue statement or omission that is based upon
information relating to any of the Holders furnished in writing to the Company
by any of the Holders.
(b) By its acquisition of Transfer Restricted Securities, each Holder
of Transfer Restricted Securities agrees, severally and not jointly, to
indemnify and hold harmless the Company and the Guarantors, and their
respective directors and officers, and each person, if any, who controls
(within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act) the Company or the Guarantors to the same extent as the foregoing
indemnity from the Company and the Guarantors set forth in section (a) above,
but only with reference to information relating to such Holder furnished in
writing to the Company by such Holder expressly for use in any Registration
Statement. In no event shall any Holder, its directors, officers or any Person
who controls such Holder be liable or responsible for any amount in excess of
the amount by which the total amount received by such Holder with respect to
its sale of Transfer Restricted Securities pursuant to a Registration
Statement exceeds (i) the amount paid by such Holder for such Transfer
Restricted Securities and (ii) the amount of any damages that such Holder, its
directors, officers or any Person who controls such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"Indemnified Party"), the Indemnified Party shall promptly notify the person
against whom such indemnity may be sought (the "Indemnifying Person") in
writing and the Indemnifying Party shall assume the defense of such action,
including the employment of counsel and the payment of all fees and expenses
of such counsel, as incurred. Any Indemnified Party shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the Indemnified Party unless (i) the employment of such counsel shall have
been specifically authorized in writing by the Indemnifying Party, (ii) the
Indemnifying Party shall have failed to assume the defense of such action or
employ counsel or (iii) the named parties to any such action (including any
impleaded parties) include both the Indemnified Party and the Indemnifying
Party, and the Indemnified Party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different
from or additional to those available to the Indemnifying Party or that
representation of the Indemnified Party and the Indemnifying Party by the same
counsel would be inappropriate under applicable standards of professional
conduct (whether or not such representation by the same counsel has been
proposed) due to actual or potential differing interests between them (in
which case the Indemnifying Party shall not have the right to assume the
defense of such action on behalf of the Indemnified Party). In any such case,
the Indemnifying Party shall not, in connection with any one action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the fees and expenses of more than one separate firm of attorneys (in addition
to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by a majority of the Holders, in the case of the parties
indemnified pursuant to Section 8(a), and by the Company and the Guarantors,
in the case of parties indemnified pursuant to Section 8(b). The Indemnifying
Party shall indemnify and hold harmless the Indemnified Party from and against
any and all losses, claims, damages, liabilities and judgments by reason of
any settlement of any action (i) effected with its written consent or (ii)
effected without its written consent if the settlement is entered into more
than twenty business days after the Indemnifying Party shall have received a
request from the Indemnified Party for reimbursement for the fees and expenses
of counsel (in any case where such fees and expenses are at the expense of the
Indemnifying Party) and, prior to the date of such settlement, the
Indemnifying Party shall have failed to comply with such reimbursement
request. No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement or compromise of, or consent to the
entry of judgment with respect to, any pending or threatened action in respect
of which the Indemnified Party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the Indemnified
Party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the Indemnified Party from all liability on claims
that are or could have been the subject matter of such action and (ii) does
not include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of the Indemnified Party.
(d) To the extent that the indemnification provided for in this
Section 8 is unavailable to an Indemnified Party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages, liabilities or judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors on the one hand, and the Holders, on the other
hand, from their initial sale of Transfer Restricted Securities (or in the
case of Series B Notes, the sale of the Series A Notes for which such Series B
Notes were exchanged) or (ii) if the allocation provided by clause 8(d)(i) is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 8(d)(i) but also
the relative fault of the Company and the Guarantors, on the one hand, and of
the Holder, on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or judgments, as
well as any other relevant equitable considerations. The relative fault of the
Company and the Guarantors, on the one hand, and of the Holder, on the other
hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or such Guarantor, on the one hand, or by the Holder, on the other
hand, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and judgments referred to above shall be deemed to include, subject to the
limitations set forth in the second paragraph of Section 8(a), any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Company, the Guarantors and each Holder of Transfer Restricted
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 8(d) were determined by pro rata allocation (even if
the Holders were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Party as a result of the losses, claims,
damages, liabilities or expenses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating any claim or defending any such action,
suit or proceeding. Notwithstanding the provisions of this Section 8, no
Holder or its related Indemnified Holders shall be required to contribute, in
the aggregate, any amount in excess of the amount by which the total received
by such Holder with respect to the sale of its Transfer Restricted Securities
pursuant to a Registration Statement exceeds the sum of (A) the amount paid by
such Holder for such Transfer Restricted Securities plus (B) the amount of any
damages which such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Holders' obligations to contribute
pursuant to this Section 8(d) are several in proportion to the respective
principal amount of Series A Notes held by each of the Holders hereunder and
not joint.
SECTION 9. RULE 144A
The Company and each Guarantor hereby agrees with each Holder, for so
long as any Transfer Restricted Securities remain outstanding and during any
period in which the Company or such Guarantor is not subject to Section 13 or
15(d) of the Securities Exchange Act, to make available in a timely manner,
upon request of any Holder of Transfer Restricted Securities, to any Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
designated by such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Act in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144A.
SECTION 10. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration unless
such Holder (a) agrees to sell such Holder's Transfer Restricted Securities on
the basis provided in customary underwriting arrangements entered into in
connection therewith and (b) completes and executes all reasonable
questionnaires, powers of attorney, and other documents required under the
terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
For any Underwritten Offering, the investment banker or investment
bankers and manager or managers for any Underwritten Offering that will
administer such offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering and consented to by the Company, which consent shall not be
unreasonably withheld. Such investment bankers and managers are referred to
herein as the "underwriters."
SECTION 12. MISCELLANEOUS
(a) Remedies. Each Holder, in addition to being entitled to exercise
all rights provided herein, in the Indenture, the Purchase Agreement or
granted by law, including recovery of liquidated or other damages, will be
entitled to specific performance of its rights under this Agreement. The
Company and the Guarantors agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by them of the
provisions of this Agreement and hereby 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 and the Guarantors' securities under any agreement in effect on the
date hereof.
(c) Adjustments Affecting the Notes. Neither the Company nor any
Guarantor will take any action, or voluntarily permit any change to occur,
with respect to the Notes that is designed to and would materially and
adversely affect the ability of the Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of Section
5 hereof and this Section 12(d)(i), the Company has obtained the written
consent of Holders of all outstanding Transfer Restricted Securities and (ii)
in the case of all other provisions hereof, the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount
of Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to
the rights of Holders whose securities are being tendered pursuant to the
Exchange Offer and that does not affect directly or indirectly the rights of
other Holders whose securities are not being tendered pursuant to such
Exchange Offer may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities subject to such Exchange
Offer.
(e) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand,
and shall have the right to enforce such agreements directly to the extent
they may deem such enforcement necessary or advisable to protect their rights
hereunder.
(f) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company or the Guarantors:
Ball Corporation
10 Longs Peak Drive
Broomfield, CO 80021-2510
Telecopier No.: (303) 460-2691
Attention: General Counsel
With a copy, which shall not constitute notice, to:
Skadden, Arps, Slate, Meagher & Flom (Illinois)
333 West Wacker Drive, Suite 2100
Chicago, IL 60606
Telecopier No.: (312) 407-0411
Attention: Brian W. Duwe
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
receipt acknowledged, if telecopied; and on the next business day, if timely
delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(g) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; provided, however, that
this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or
assign acquired Transfer Restricted Securities directly from such Holder.
(h) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability
of any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(l) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred
to herein with respect to the registration rights granted with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
BALL CORPORATION
By: /s/ Scott C. Morrison
------------------------------------
Name: Scott C. Morrison
Title: Vice President and Treasurer
BALL AEROSPACE & TECHNOLOGIES CORP.
By: /s/ Scott C. Morrison
------------------------------------
Name: Scott C. Morrison
Title: Vice President and Treasurer
BALL METAL BEVERAGE CONTAINER CORP.
By: /s/ Scott C. Morrison
------------------------------------
Name: Scott C. Morrison
Title: Vice President and Treasurer
BALL METAL FOOD CONTAINER CORP.
By: /s/ Scott C. Morrison
-----------------------------------
Name: Scott C. Morrison
Title: Vice President and Treasurer
BALL METAL PACKAGING SALES CORP.
By: /s/ Scott C. Morrison
-----------------------------------
Name: Scott C. Morrison
Title: Vice President and Treasurer
BALL PACKAGING CORP.
By: /s/ Scott C. Morrison
----------------------------------
Name: Scott C. Morrison
Title: Vice President and Treasurer
BALL PLASTIC CONTAINER CORP.
By: /s/ Scott C. Morrison
-----------------------------------
Name: Scott C. Morrison
Title: Vice President and Treasurer
BALL TECHNOLOGIES HOLDING CORP.
By: /s/ Scott C. Morrison
----------------------------------
Name: Scott C. Morrison
Title: Vice President and Treasurer
LATAS DE ALUMINIO BALL, INC.
By: /s/ Scott C. Morrison
----------------------------------
Name: Scott C. Morrison
Title: Vice President and Treasurer
BALL PAN-EUROPEAN HOLDINGS, INC.
By: /s/ Scott C. Morrison
----------------------------------
Name: Scott C. Morrison
Title: Vice President and Treasurer
BG HOLDINGS I, INC.
By: /s/ Scott C. Morrison
------------------------------------
Name: Scott C. Morrison
Title: Vice President and Treasurer
BG HOLDINGS II, INC.
By: /s/ Scott C. Morrison
-----------------------------------
Name: Scott C. Morrison
Title: Vice President and Treasurer
EFRATOM HOLDING, INC.
By: /s/ Scott C. Morrison
----------------------------------
Name: Scott C. Morrison
Title: Vice President and Treasurer
Confirmed as of the date first
above written.
LEHMAN BROTHERS INC.
DEUTSCHE BANK SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
BANC ONE CAPITAL MARKETS, INC.
BNP PARIBAS SECURITIES CORP.
DRESDNER KLEINWORT WASSERSTEIN-GRANTCHESTER, INC.
MCDONALD INVESTMENTS INC.
SUNTRUST CAPITAL MARKETS, INC.
WELLS FARGO BROKERAGE SERVICES, LLC
By: LEHMAN BROTHERS INC.
By: Stephen Mehos
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Name: Stephen Mehos
Title: Senior Vice President
Exhibit A
Guarantors
1. Ball Aerospace & Technologies Corp., a Delaware corporation
2. Ball Metal Beverage Container Corp., a Colorado corporation
3. Ball Metal Food Container Corp., a Delaware corporation
4. Ball Metal Packaging Sales Corp., a Colorado corporation
5. Ball Packaging Corp., a Colorado corporation
6. Ball Plastic Container Corp., a Colorado corporation
7. Ball Technologies Holdings Corp., a Colorado corporation
8. Latas de Aluminio Ball, Inc., a Delaware corporation
9. Ball Pan-European Holdings, Inc., a Delaware corporation
10. BG Holdings I, Inc., a Delaware corporation
11. BG Holdings II, Inc., a Delaware corporation
12. Efratom Holding, Inc., a Colorado corporation