EXHIBIT 4.3
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REGISTRATION RIGHTS AGREEMENT
Dated May 7, 2002
among
COORS BREWING COMPANY
(Fully and Unconditionally Guaranteed by Adolph Coors Company and certain
subsidiaries of Coors Brewing Company)
and
MORGAN STANLEY & CO. INCORPORATED
and
J.P. MORGAN SECURITIES INC.
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is made and
entered into May 7, 2002, among Coors Brewing Company, a Colorado corporation
(the "ISSUER"), Adolph Coors Company, a Colorado corporation (the "PARENT"), the
Subsidiary Guarantors named in the Purchase Agreement (together with the Parent,
the "GUARANTORS"), and Morgan Stanley & Co. Incorporated and J.P. Morgan
Securities Inc. (the "REPRESENTATIVES"), as representatives of the several
initial purchasers named in the Purchase Agreement (the "INITIAL PURCHASERS").
This Agreement is made pursuant to the Purchase Agreement dated April
30, 2002 between the Issuer, the Guarantors and the Initial Purchasers (the
"PURCHASE AGREEMENT"), which provides for the sale by the Issuer to the Initial
Purchasers of an aggregate of $850,000,000 principal amount of the 6 3/8% Senior
Notes due 2012 (the "SECURITIES") to be issued by the Issuer. In order to induce
the Initial Purchasers to enter into the Purchase Agreement, the Issuer and the
Guarantors have agreed to provide to the Initial Purchasers and their direct and
indirect transferees the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 ACT" shall mean the Securities Act of 1933, as amended from time
to time.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"ADDITIONAL INTEREST" shall have the meaning assigned to it in Section
2(e).
"BUSINESS DAY" shall mean any day other than a Saturday or Sunday or a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed.
"CLOSING DATE" shall mean the Closing Date as defined in the Purchase
Agreement.
"EFFECTIVENESS DEADLINE" shall have the meaning set forth in Section
2(a) hereof.
"EXCHANGE OFFER" shall mean the exchange offer by the Issuer and the
Parent of Exchange Securities for Registrable Securities pursuant to Section
2(a) hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under the 1933
Act effected pursuant to Section 2(a) hereof.
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"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated or deemed to be incorporated by reference therein.
"EXCHANGE SECURITIES" shall mean securities issued by the Issuer and
guaranteed by the Guarantors under the Indenture containing terms identical to
the Securities (except that (i) interest thereon shall accrue from the last date
on which interest was paid on the Securities or, if no such interest has been
paid, from May 7, 2002 and (ii) the Exchange Securities will not contain
restrictions on transfer or bear a restrictive legend) and to be offered to
Holders of Securities in exchange for Securities pursuant to the Exchange Offer.
"HOLDER" shall mean the Initial Purchasers, for so long as they own any
Registrable Securities, and each of their respective successors, assigns and
direct and indirect transferees who become registered owners of Registrable
Securities under the Indenture; provided that for purposes of Sections 4 and 5
of this Agreement, the term "HOLDER" shall include Participating Broker-Dealers.
"INDENTURE" shall mean the Indenture relating to the Securities dated
as of May 7, 2002, between the Issuer, the Guarantors and Deutsche Bank Trust
Company Americas, as trustee, as the same may be amended, supplemented, waived
or otherwise modified from time to time in accordance with the term thereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the preamble
to this Agreement.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by the
Issuer, the Parent or any of their "affiliates" (as such term is defined in Rule
144 under the 1933 Act) (other than the Initial Purchasers, it being understood
and agreed that none of the Initial Purchasers nor any of their respective
subsidiaries, parents or affiliates shall be deemed affiliates of the Issuer or
the Parent for purposes of this definition, and other than subsequent holders of
Registrable Securities if such subsequent holders are deemed to be such
affiliates solely by reason of their holding of such Registrable Securities)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage or amount. In cases where this
Agreement shall permit or require any action or determination to be made by, for
example, a majority in principal amount of Registrable Securities being sold or
included in a Shelf Registration or offering or affected by an amendment, the
procedures specified in the proviso to the foregoing sentence shall be applied.
"PARTICIPATING BROKER-DEALER" shall have the meaning specified in
Section 4(a) of this Agreement.
"PERSON" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization or other entity, or a
government or agency or political subdivision thereof.
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"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
all material incorporated or deemed to be incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble
to this Agreement.
"REGISTRABLE SECURITIES" shall mean the Securities; provided, however,
that the Securities shall cease to be Registrable Securities (i) when a
Registration Statement with respect to such Securities shall have been declared
effective under the 1933 Act and such Securities shall have been disposed of
pursuant to such Registration Statement, (ii) when such Securities have been
sold to the public pursuant to Rule 144(k) (or any similar provision then in
force, but not Rule 144A) under the 1933 Act or (iii) when such Securities shall
have ceased to be outstanding.
"REGISTRATION EXPENSES" shall mean all expenses incident to performance
of or compliance by the Issuer and the Guarantors with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any of the
Exchange Securities or Registrable Securities), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales agreements
and other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating
to the qualification of the Indenture under applicable securities laws, (vi) the
fees and disbursements of the Trustee and its counsel, (vii) the fees and
disbursements of counsel for the Issuer and the Parent and, in the case of a
Shelf Registration Statement, the fees and disbursements of one counsel for the
Holders (which counsel shall be selected by the Representatives or, if the
Representatives elect not to select such counsel, by the Majority Holders and
which counsel may also be counsel for the Initial Purchasers) and (viii) the
fees and disbursements of the independent public accountants of the Issuer and
the Parent and of any other Person or business whose financial statements are
included or incorporated or deemed to be incorporated by reference in a
Registration Statement, including the expenses of any special audits or "cold
comfort" or similar letters required by or incident to such performance and
compliance. Notwithstanding the foregoing, Holders shall be responsible for fees
and expenses of counsel to the underwriters (other than fees and expenses set
forth in clauses (ii) and (vii) above) or the Holders and underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or disposition
of Registrable Securities by a Holder.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Parent that covers any of the Exchange Securities or Registrable Securities
pursuant to the provisions of this Agreement and all amendments and supplements
to any such Registration Statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated or deemed to be incorporated by reference therein.
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"REPRESENTATIVES" shall have the meaning set forth in the preamble to
this Agreement.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES" shall have the meaning set forth in the preamble to this
Agreement.
"SHELF REGISTRATION" shall mean a registration effected pursuant to
Section 2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration
statement of the Parent pursuant to the provisions of Section 2(b) of this
Agreement which covers all of the Registrable Securities (but no other
securities unless approved by the Holders whose Registrable Securities are
covered by such Shelf Registration Statement) on an appropriate form under Rule
415 under the 1933 Act, or any similar rule that may be adopted by the SEC, and
all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated or deemed to be
incorporated by reference therein.
"TRUSTEE" shall mean the trustee with respect to the Securities under
the Indenture.
"UNDERWRITER" shall have the meaning set forth in the last paragraph of
Section 3 of this Agreement.
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING" shall mean a
registration in which Registrable Securities are sold to an Underwriter or
Underwriters for reoffering to the public.
"VOLUNTARY SUSPENSION NOTICE" shall have the meaning set forth in
Section 2(b) hereof.
2. Registration Under the 1933 Act.
(a) To the extent not prohibited by any applicable law or applicable
interpretation of the Staff of the SEC, the Parent shall (A) use its reasonable
best efforts to prepare and, as soon as practicable but not later than 120 days
following the Closing Date, file with the SEC an Exchange Offer Registration
Statement on an appropriate form under the 1933 Act with respect to a proposed
Exchange Offer and the issuance and delivery to the Holders, in exchange for the
Registrable Securities, of a like principal amount of Exchange Securities, (B)
use its reasonable best efforts to cause the Exchange Offer Registration
Statement to be declared effective under the 1933 Act not later than 180 days of
the Closing Date (the "EFFECTIVENESS DEADLINE"), (C) use its reasonable best
efforts to keep the Exchange Offer Registration Statement effective until the
closing of the Exchange Offer and (D) use its reasonable best efforts to cause
the Exchange Offer to be consummated as promptly as practicable, but in any case
not later than the date that is 40 Business Days after the Effectiveness
Deadline. The Parent shall commence the Exchange Offer by mailing the related
exchange offer Prospectus and accompanying documents to each Holder stating, in
addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to
this Registration Rights Agreement and that all Registrable
Securities validly tendered and not withdrawn will be accepted
for exchange;
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(ii) the dates of acceptance for exchange (which
shall be a period of at least 20 Business Days from the date
such notice is mailed) (the "EXCHANGE DATES");
(iii) that any Registrable Security not tendered will
remain outstanding and continue to accrue interest, but will
not thereafter be entitled to receive any Additional Interest
or be entitled to any registration rights under this
Agreement;
(iv) that Holders electing to have a Registrable
Security exchanged pursuant to the Exchange Offer will be
required to surrender such Registrable Security, together with
the enclosed letter of transmittal, to the institution and at
the address (located in the Borough of Manhattan, The City of
New York) specified in the exchange offer Prospectus or the
accompanying documents prior to the time the Exchange Offer
terminates (which shall not be earlier than 5:00 p.m., New
York City time) on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their
election, not later than the time the Exchange Offer
terminates (which shall not be earlier than 5:00 p.m., New
York City time) on the last Exchange Date, by sending to the
institution and at the address (located in the Borough of
Manhattan, The City of New York) specified in the exchange
offer Prospectus or the accompanying documents a telegram,
telex, facsimile transmission or letter setting forth the name
of such Holder, the principal amount of Registrable Securities
delivered for exchange and a statement that such Holder is
withdrawing his election to have such Securities exchanged.
As soon as reasonably practicable after the last Exchange Date, the
Parent shall:
(i) accept for exchange all Registrable Securities or
portions thereof validly tendered and not withdrawn pursuant
to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the
Trustee for cancellation all Registrable Securities or
portions thereof so accepted for exchange by the Issuer or the
Parent and issue, and cause the Trustee to promptly
authenticate and mail to each Holder, an Exchange Security
equal in principal amount to the principal amount of the
Registrable Securities surrendered by such Holder.
The Parent shall use its reasonable best efforts to complete the
Exchange Offer as provided above and shall comply with the applicable
requirements of the 1933 Act, the 1934 Act and other applicable laws and
regulations in connection with the Exchange Offer. The Exchange Offer shall not
be subject to any conditions, other than (A) that the Exchange Offer does not
violate applicable law or any applicable interpretation of the Staff of the SEC
and (B) those additional conditions set forth on Schedule A hereto. The Issuer
or Parent shall inform the Representatives of the names and addresses of the
Holders to whom the Exchange Offer is made, and the Representatives shall have
the right, subject to applicable law, to contact such Holders and otherwise
facilitate the tender of Registrable Securities in the Exchange Offer.
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Each Holder participating in the Exchange Offer shall be required to
represent to the Issuer or the Parent that at the time of the consummation of
the Exchange Offer (i) any Exchange Securities received by such Holder will be
acquired in the ordinary course of business, (ii) such Holder has no arrangement
or understanding with any person to participate in the distribution of the
Securities or the Exchange Securities within the meaning of the Securities Act,
(iii) such Holder is not an "affiliate," as defined in Rule 405 of the
Securities Act, of the Parent or, if it is such affiliate, such Holder will
comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable, (iv) if such Holder is not a
broker-dealer, that it is not engaged in, and does not intend to engage in, the
distribution of the Exchange Securities within the meaning of the 1933 Act and
(v) if such Holder is a broker-dealer, that it will receive Exchange Securities
in exchange for Securities that were acquired for its own account as a result of
market-making activities or other trading activities and that it will be
required to acknowledge that it will deliver a prospectus in connection with any
resale of such Exchange Securities.
(b) In the event that (i) the Parent determines that the Exchange Offer
Registration provided for in Section 2(a) above is not available or the Exchange
Offer may not be consummated as soon as practicable after the last Exchange Date
because it would violate applicable law or the applicable interpretations of the
Staff of the SEC, (ii) the Exchange Offer is for any other reason not
consummated within 40 Business Days following the Effectiveness Deadline, or
(iii) the Exchange Offer has been completed and the Representatives have
determined, based upon the opinion of legal counsel, that a Registration
Statement must be filed or a Prospectus must be delivered by the Initial
Purchasers in connection with any offering or sale of Registrable Securities,
the Parent shall use their reasonable best efforts to cause to be filed as soon
as reasonably practicable after such determination, date or date that notice of
such determination by the Representatives is given to the Issuer or the Parent,
as the case may be, a Shelf Registration Statement providing for the sale by the
Holders of all of the Registrable Securities and to use its reasonable best
efforts to have such Shelf Registration Statement declared effective by the SEC
as soon as reasonably practicable. In the event the Parent is required to file a
Shelf Registration Statement solely as a result of the matters referred to in
clause (iii) of the preceding sentence, the Parent shall use its reasonable best
efforts to file and have declared effective by the SEC both an Exchange Offer
Registration Statement pursuant to Section 2(a) with respect to all Registrable
Securities and a Shelf Registration Statement (which may be a combined
Registration Statement with the Exchange Offer Registration Statement) with
respect to offers and sales of Registrable Securities held by the Initial
Purchasers after completion of the Exchange Offer. The Parent agrees to use its
reasonable best efforts to keep the Shelf Registration Statement continuously
effective and to keep the related Prospectus current until the expiration of the
period referred to in Rule 144(k) with respect to the Registrable Securities or
such shorter period that will terminate when all of the Registrable Securities
covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or shall have been sold to the public pursuant to Rule
144(k) (or similar provision then in force, but not Rule 144A) under the 1933
Act or shall have ceased to be outstanding; provided, however, that if there is
a possible acquisition or business combination or other transaction, business
development or event involving the Parent that would require disclosure in the
Shelf Registration Statement or the documents incorporated or deemed to be
incorporated by reference therein or the related Prospectus and the Parent
determines in the exercise of its reasonable judgment that such disclosure is
not in the best interests of the Parent and its
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stockholders or obtaining any financial statements relating to an acquisition or
business combination required to be included in the Shelf Registration Statement
or the documents incorporated or deemed to be incorporated by reference therein
or the related Prospectus would be impracticable, the Parent shall give the
Holders notice (a "Voluntary Suspension Notice") to suspend use of the
Prospectus relating to the Shelf Registration Statement, and the Holders hereby
agree to suspend use of such Prospectus until the Parent has amended or
supplemented such Prospectus or has notified the Holders that use of the then
current Prospectus may be resumed as provided in the penultimate paragraph of
Section 3. In the case of any Voluntary Suspension Notice, the Parent shall not
be required to disclose in such notice the possible acquisition or business
combination or other transaction, business development or event as a result of
which such notice shall have been given if the Parent determines in good faith
that such acquisition or business combination or other transaction, business
development or event should remain confidential and, while such Voluntary
Suspension Notice is in effect, the Parent shall not be required to amend or
supplement the Shelf Registration Statement, the documents incorporated or
deemed to be incorporated by reference therein or the related Prospectus to
reflect such possible acquisition or business combination or other transaction,
business development or event, but shall use its reasonable best efforts to
maintain the effectiveness of such Shelf Registration Statement. Upon the
abandonment, consummation, termination or public announcement or other public
disclosure of the possible acquisition or business combination or other
transaction, or if the applicable business development or event shall cease to
exist or shall be publicly disclosed, then the Parent shall promptly comply with
this Section 2(b) and Sections 3(b), 3(e)(iv) (if applicable), 3(i) (if
applicable) and the penultimate paragraph in Section 3 hereof and notify the
Holders that disposition of Registrable Securities may resume; provided that, if
Section 3(i) shall require an amendment or supplement to the Shelf Registration
Statement or the related Prospectus, then such resumption shall not occur until
the Parent shall have delivered copies of the supplemented or amended Prospectus
contemplated by Section 3(i) to the applicable Holders. Anything herein to the
contrary notwithstanding, the right of the Parent to suspend use of the
Prospectus pursuant to this paragraph shall be subject to the limitation set
forth in the last sentence of the penultimate paragraph of Section 3. The Parent
further agrees to supplement or amend the Shelf Registration Statement and/or
the related Prospectus if required by the rules, regulations or instructions
applicable to the registration form used by the Parent for such Shelf
Registration Statement or by the 1933 Act or by any other rules and regulations
thereunder for shelf registration or if reasonably requested by a Holder with
respect to information relating to such Holder, and to use its reasonable best
efforts to cause any such amendment to become effective and such Shelf
Registration Statement and/or the related Prospectus to become usable as soon as
thereafter reasonably practicable, subject to the right of the Parent, on the
terms and subject to the conditions described elsewhere in this Section 2(b), to
suspend its obligation to amend or supplement the Shelf Registration Statement
and/or the related Prospectus by giving a Voluntary Suspension Notice. The
Parent agrees to furnish to the Holders of Registrable Securities copies of any
such supplement or amendment promptly after its being used or filed with the
SEC.
(c) The Issuer or the Guarantors shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) and Section 2(b)
including, but not limited to, the fees and expenses of one counsel to be
selected by the Representatives or, if the Representatives elect not to select
such counsel, by the Majority Holders and which counsel may also be counsel for
the Initial Purchasers. Each Holder shall pay all underwriting discounts and
commissions
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and transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC; provided, however, that, if, after it has been declared effective, the
offering of Registrable Securities pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration Statement
will be deemed not to have become effective during the period of such
interference until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume.
(e) Additional cash interest (the "ADDITIONAL INTEREST") shall be
payable by the Issuer or the Guarantors in respect of the Securities as follows:
(i) If an Exchange Offer Registration Statement or
Shelf Registration Statement is not filed within 120 days
following the Closing Date, then commencing on and including
the 121st day after the Closing Date, in addition to the
interest otherwise payable on the Securities, Additional
Interest will accrue and be payable on the Securities at the
rate of 0.25% per annum; and
(ii) If an Exchange Offer Registration Statement or
Shelf Registration Statement is not declared effective within
180 days following the Closing Date, then commencing on and
including the 181st day after the Closing Date, in addition to
the interest otherwise payable on the Securities, Additional
Interest will accrue and be payable on the Securities at the
rate of 0.25% per annum; and
(iii) If either (A) the Parent has not exchanged
Exchange Securities for all Securities validly tendered and
not withdrawn in accordance with the terms of the Exchange
Offer on or prior to the date that is 40 Business Days after
the Effectiveness Deadline, or (B) if applicable, the Shelf
Registration Statement has been declared effective but such
Shelf Registration Statement ceases to be effective at any
time prior to the expiration of the holding period referred to
in Rule 144(k) or, if earlier, such time as all of the
Registrable Securities covered by the Shelf Registration
Statement have been disposed of pursuant to such Shelf
Registration Statement or sold to the public pursuant to Rule
144(k) (or any similar provision then in force, but not Rule
144A) under the 1933 Act or shall have ceased to be
outstanding, then, in addition to the interest otherwise
payable on the Securities, Additional Interest will accrue and
be payable on the Securities at the rate of 0.25% per annum
from and including (x) the day (whether or not a Business Day)
immediately succeeding the 40th Business Day after the
Effectiveness Deadline, in the case of (A) above, or (y) the
day such Shelf Registration Statement ceases to be effective,
in the case of (B) above;
provided, however, that the Additional Interest rate on the Securities may in no
event exceed 0.25% per annum; and provided, further, that (1) upon the filing of
the Exchange Offer Registration Statement or Shelf Registration Statement (in
the case of (i) above), (2) upon the
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effectiveness of the Exchange Offer Registration Statement or the Shelf
Registration Statement (in the case of (ii) above), or (3) upon the exchange of
Exchange Securities for all Registrable Securities validly tendered and not
withdrawn in the Exchange Offer or upon the effectiveness of the Shelf
Registration Statement that had ceased to remain effective prior to the
expiration of the holding period referred to in Rule 144(k) or, if earlier, such
time as all of the Registrable Securities covered by the Shelf Registration
Statement have been disposed of pursuant to such Shelf Registration Statement or
sold to the public pursuant to Rule 144(k) (or any similar provision then in
force, but not Rule 144A) under the 1933 Act or shall have ceased to be
outstanding (in the case of (iii) above), Additional Interest on the Securities
as a result of such clause (i), (ii) or (iii), respectively, shall cease to
accrue.
Any amount of Additional Interest due pursuant to clauses (i), (ii) or
(iii) of the preceding paragraph will be payable in cash and will be payable on
the same dates on which interest is otherwise payable on the Securities and to
the same Persons who are entitled to receive those payments of interest on the
Securities. The amount of Additional Interest payable for any period will be
determined by multiplying the Additional Interest rate, which will be 0.25% per
annum, by the principal amount of the Securities and then multiplying the
product by a fraction, the numerator of which is the number of days that the
Additional Interest rate was applicable during such period (determined on the
basis of a 360-day year comprised of twelve 30-day months) and the denominator
of which is 360.
(f) Without limiting the remedies available to the Initial Purchasers
and the Holders, the Issuer and the Guarantors acknowledges that any failure by
the Parent to comply with its obligations under Section 2(a) and Section 2(b)
hereof may result in material irreparable injury to the Initial Purchasers or
the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, any Initial Purchaser or any Holder may obtain such relief
as may be required to specifically enforce the Issuer and the Guarantor's
obligations under Section 2(a) and Section 2(b) hereof, provided that, without
limiting the ability of any Initial Purchaser or any Holder to specifically
enforce such obligations, in the case of any terms of this Agreement for which
Additional Interest pursuant to 2(e) is expressly provided as a remedy for a
violation of such terms, such Additional Interest shall be the sole monetary
damages for such a violation.
3. Registration Procedures.
In connection with the obligations of the Issuer and the Guarantors
with respect to the Registration Statements pursuant to Section 2(a) and Section
2(b) hereof, the Parent shall as expeditiously as reasonably practicable:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the 1933 Act, which form (x) shall be selected by the
Parent and (y) shall, in the case of a Shelf Registration, be available for the
sale of the Registrable Securities by the selling Holders thereof and (z) shall
comply as to form in all material respects with the requirements of the
applicable form and include or incorporate by reference all financial statements
required by the SEC to be filed therewith, and use its reasonable best efforts
to cause such Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
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(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period and, subject to the
Parent's rights to suspend the use of the Prospectus relating to the Shelf
Registration Statement pursuant to Section 2(b) of this Agreement on the terms
and subject to the conditions set forth in such Section 2(b), cause each
Prospectus to be supplemented by any required prospectus supplement and, as so
supplemented, to be filed pursuant to Rule 424 under the 1933 Act if required by
such Rule and to keep each Prospectus current during the period described under
Section 4(3) and Rule 174 under the 1933 Act that is applicable to transactions
by brokers or dealers with respect to the Registrable Securities or Exchange
Securities;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Initial Purchasers, to counsel for
the Holders and to each Underwriter of an Underwritten Offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus, including
each preliminary prospectus, and any amendment or supplement thereto and such
other documents as such Holder, counsel or Underwriter may reasonably request,
in order to facilitate the public sale or other disposition of the Registrable
Securities; and the Parent consents to the use of such Prospectus and any
amendment or supplement thereto in accordance with applicable law by each of the
selling Holders of Registrable Securities and any such Underwriter in connection
with the offering and sale of the Registrable Securities covered by and in the
manner described in such Prospectus or any amendment or supplement thereto in
accordance with applicable law;
(d) use its reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue sky" laws
of such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC, to cooperate
with such Holders in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. and do any and all other acts
and things which may be reasonably necessary or advisable to enable such Holder
to consummate the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that the Parent shall not be
required to (i) qualify as a foreign corporation or as a dealer in securities in
any jurisdiction where it would not otherwise be required to qualify but for
this Section 3(d), (ii) file any general consent to service of process or (iii)
subject itself to taxation in any such jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for the Holders and counsel for the Initial
Purchasers promptly and, if requested by any such Holder or counsel, confirm
such advice in writing (i) when a Registration Statement has become effective
and when any post-effective amendment thereto has been filed and becomes
effective, (ii) of any request by the SEC or any state securities authority for
amendments and supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose, (iv) of the happening of any event during
the period a Shelf Registration Statement is effective which makes any statement
made in such Registration Statement or the related Prospectus untrue in any
material respect or as a result of
10
which the Shelf Registration Statement or the related Prospectus contains an
untrue statement of a material fact or omits to state a 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 which
requires the making of any changes in such Registration Statement or Prospectus
in order to make the statements therein not misleading (but subject to the right
of the Parent, under the circumstances set forth in Section 2(b) of this
Agreement, not to disclose the nature of such event) and (v) of any
determination by the Parent that a post-effective amendment to a Registration
Statement would be appropriate;
(f) use reasonable best efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement as soon as reasonably
possible and provide notice as promptly as practicable to each Holder of the
withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, one conformed copy of each Registration
Statement and any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends and enable such Registrable Securities to be in
such denominations (consistent with the provisions of the Indenture) and
registered in such names as the selling Holders may reasonably request at least
one business day prior to the closing of any sale of Registrable Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(e)(iv) hereof but subject to the Parent's right
to suspend the use of the related Prospectus pursuant to Section 2(b) on the
terms and subject to the conditions set forth in such Section 2(b), use its
reasonable best efforts to prepare and file promptly with the SEC a supplement
or post-effective amendment to a Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The Parent agrees to notify the Holders to suspend use of the
Prospectus as promptly as practicable after the occurrence of such an event, and
the Holders hereby agree to suspend use of the Prospectus until the Parent has
amended or supplemented the Prospectus to correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus, provide copies of such document to the
Representatives and their counsel (and, in the case of a Shelf Registration
Statement, the Holders and their counsel), and the Parent shall not at any time
file or make any amendment to the Registration Statement, any Prospectus or any
amendment of or supplement to a Registration Statement or a Prospectus of which
the Representatives and counsel to the Initial Purchasers (and, in the case of a
Shelf Registration Statement, the Holders and their counsel) shall not have
previously been advised and furnished a
11
copy or to which the Representatives or counsel to the Initial Purchasers (and,
in the case of a Shelf Registration Statement, the Holders or their counsel)
shall reasonably object.
(k) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended (the "TIA"), in connection with the registration of the
Exchange Securities or Registrable Securities, as the case may be, cooperate
with the Trustee and the Holders to effect such changes to the Indenture as may
be required for the Indenture to be so qualified in accordance with the terms of
the TIA and execute, and use its reasonable best efforts to cause the Trustee to
execute, all documents as may be required to effect such changes and all other
forms and documents required to be filed with the SEC to enable the Indenture to
be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for inspection
by a representative of the Holders of the Registrable Securities, any Initial
Purchaser participating in any disposition pursuant to such Shelf Registration
Statement, and attorneys and accountants designated by the Holders and
reasonably acceptable to the Parent and in a manner that is reasonable and
customary for shelf offerings by companies regularly filing reports under the
Securities Exchange Act of 1934, as amended, all material financial and other
pertinent records and documents of the Parent, cause the appropriate officers of
the Parent to make themselves reasonably available for "due diligence"
conferences of the nature customary in connection with shelf offerings by
companies regularly filing reports under the Securities Exchange Act of 1934, as
amended, and cause the officers, directors and employees of the Parent to supply
all material information reasonably requested by any such representative of the
Holders, Initial Purchaser, attorney or accountant in connection with a Shelf
Registration Statement;
(n) use its reasonable best efforts to cause the Exchange Securities or
Registrable Securities, as the case may be, to be rated by two nationally
recognized statistical rating organizations (as such term is defined in Rule
436(g)(2) under the 1933 Act);
(o) if reasonably requested by any Holder of Registrable Securities
covered by a Registration Statement, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information with respect to such
Holder as such Holder reasonably requests to be included therein and (ii) make
all required filings of such Prospectus supplement or such post-effective
amendment as soon as reasonably practicable after the Parent has received
notification of the matters to be incorporated in such filing; and
(p) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith (including
those requested by the Holders of a majority of the Registrable Securities being
sold) in order to expedite or facilitate the disposition of such Registrable
Securities including, but not limited to, an Underwritten Offering and in such
connection, (i) to the extent possible, make such representations and warranties
to the Holders and any Underwriters of such Registrable Securities with respect
to the business of the Parent and its subsidiaries, the Registration Statement,
Prospectus and documents incorporated by reference or deemed incorporated by
reference, if any, in each case, in form, substance and scope
12
as are customarily made by issuers to underwriters in underwritten offerings and
confirm the same if and when requested, (ii) obtain opinions of counsel to the
Parent (which counsel and opinions, in form, scope and substance, shall be
reasonably satisfactory to the Holders and such Underwriters and their
respective counsel) addressed to each selling Holder and Underwriters of
Registrable Securities, covering the matters customarily covered in opinions
requested in underwritten offerings, (iii) obtain "cold comfort" letters from
the independent certified public accountants of the Parent (and, if necessary,
any other certified public accountant of any of their subsidiaries, or of any
Person or business acquired by the Parent for which financial statements and
financial data are or are required to be included in the Registration Statement
or in the documents incorporated or deemed to be incorporated therein) addressed
to each selling Holder and Underwriter of Registrable Securities, such letters
to be in customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings, and (iv)
deliver such documents and certificates as may be reasonably requested by the
Holders of a majority in principal amount of the Registrable Securities being
sold or the Underwriters, and which are customarily delivered in underwritten
offerings to evidence the continued validity of the representations and
warranties of the Parent made pursuant to clause (i) above and to evidence
compliance with any customary conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Issuer and the
Parent may require each Holder of Registrable Securities to furnish to the
Issuer or the Parent such information regarding the Holder and the proposed
distribution by such Holder of such Registrable Securities as the Issuer or the
Parent may from time to time reasonably request in writing and the Parent may
exclude from such Shelf Registration Statement the Securities of any Holders
that refuse to comply with such request.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Issuer or the Parent of the happening of any
event of the kind described in Section 3(e)(iv) hereof or upon receipt of any
Voluntary Suspension Notice pursuant to Section 2(b) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to such
Shelf Registration Statement until either (x) such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 3(i)
hereof or (y) solely in the case of a Voluntary Suspension Notice, the Parent
shall have notified such Holder that disposition of Registrable Securities may
be resumed using the then current Prospectus, and, if so directed by the Parent
in the case of clause (x), such Holder will deliver to the Issuer or the Parent
(at its expense) all copies in its possession, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice. If the Parent shall
give any such notice to suspend the disposition of Registrable Securities
pursuant to a Registration Statement, the Parent shall extend the period during
which the Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including the date of
the giving of such notice to and including the date when the Holders shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions or the Holders shall have received notice that disposition of
Registrable Securities may be resumed using the then current Prospectus as the
case may be. Anything herein to the contrary notwithstanding, the Parent will
not be entitled to require Holders to discontinue the sale or other disposition
of Registrable Securities pursuant to a Shelf Registration Statement or to
suspend the use of the
13
related Prospectus for more than 120 days (whether or not consecutive) in any
period of 12 consecutive months.
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "UNDERWRITERS") that will
administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Staff of the SEC has taken the position that any broker-dealer
that receives Exchange Securities in the Exchange Offer in exchange for
Securities that were acquired by such broker-dealer for its own account as a
result of market-making or other trading activities (a "PARTICIPATING
BROKER-DEALER"), may be deemed to be an "underwriter" within the meaning of the
1933 Act and must deliver a prospectus meeting the requirements of the 1933 Act
in connection with any resale of such Exchange Securities.
The Parent understands that it is the Staff's position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the Exchange Securities, without
naming the Participating Broker-Dealers or specifying the amount of Exchange
Securities owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus delivery obligation under the 1933
Act in connection with resales of Exchange Securities for their own accounts, so
long as the Prospectus otherwise meets the requirements of the 1933 Act.
(b) In light of the above, notwithstanding the other provisions of this
Agreement, the Issuer and the Parent agree that the provisions of this Agreement
as they relate to a Shelf Registration shall also apply to an Exchange Offer
Registration to the extent, and with such reasonable modifications thereto as
may be reasonably requested by the Representatives or by one or more
Participating Broker-Dealers, in each case as provided in clause (ii) below, in
order to expedite or facilitate the disposition of any Exchange Securities by
Participating Broker-Dealers consistent with the positions of the Staff recited
in Section 4(a) above; provided that:
(i) the Parent shall not be required to amend or
supplement the Prospectus contained in the Exchange Offer
Registration Statement, as would otherwise be contemplated by
Section 3(i), for a period exceeding 180 days after the last
Exchange Date (as such period may be extended pursuant to the
penultimate paragraph of Section 3 of this Agreement) and
Participating Broker-Dealers shall not be authorized by the
Parent to deliver and shall not deliver such Prospectus after
such period in connection with the resales contemplated by
this Section 4; and
(ii) the application of the Shelf Registration
procedures set forth in Section 3 of this Agreement to an
Exchange Offer Registration, to the extent not required by the
positions of the Staff of the SEC or the 1933 Act and the
rules and
14
regulations thereunder, will be in conformity with the
reasonable request to the Parent by the Representatives or
with the reasonable request in writing to the Parent by one or
more broker-dealers who certify to the Representatives and the
Parent in writing that they anticipate that they will be
Participating Broker-Dealers; and provided further that, in
connection with such application of the Shelf Registration
procedures set forth in Section 3 to an Exchange Offer
Registration, the Parent shall be obligated (x) to deal only
with one of two entities representing the Participating
Broker-Dealers, which shall be Morgan Stanley & Co.
Incorporated or J.P. Morgan Securities Inc. unless either
entity elects not to act as such representative, (y) to pay
the fees and expenses of only one counsel representing the
Participating Broker-Dealers, which shall be counsel to the
Initial Purchasers unless such counsel elects not to so act
and (z) to cause to be delivered only one, if any, "cold
comfort" or similar letter relating to the Parent (plus only
one, if any, "cold comfort" or similar letter with respect to
any other Person or businesses whose financial statements are
included or incorporated or deemed to be incorporated by
reference in the Exchange Offer Registration Statement) with
respect to the Prospectus in the form existing on the last
Exchange Date and with respect to each subsequent amendment or
supplement, if any, effected during the period specified in
clause (i) above.
(c) The Representatives shall have no liability to the Issuer and the
Guarantors or any Holder with respect to any request that it may make pursuant
to Section 4(b) above.
5. Indemnification and Contribution.
(a) The Issuer and the Guarantors agree to indemnify and hold harmless
the Initial Purchasers, each Holder and each Person, if any, who controls any
Initial Purchaser or any Holder within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act, or is under common control with, or is
controlled by, any Initial Purchaser or any Holder, from and against all losses,
claims, damages and liabilities (including, without limitation but subject to
Section 5(c) below, any legal or other expenses reasonably incurred by any
Initial Purchaser, any Holder or any such controlling or affiliated Person in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement (or any amendment thereto) pursuant to which Exchange
Securities or Registrable Securities were registered under the 1933 Act,
including all documents incorporated or deemed to be incorporated therein by
reference, 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, or caused by any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (as amended or
supplemented if the Parent shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to the Initial Purchasers or any Holder furnished to the Parent in
writing through Morgan Stanley & Co. Incorporated or any selling Holder,
respectively, expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any preliminary Prospectus
15
relating to a Shelf Registration Statement shall not inure to the benefit of any
Holder or Participating Broker-Dealer from whom the Person asserting any such
losses, claims, damages or liabilities purchased Securities, or any person
controlling such Holder or Participating Broker-Dealer, if a copy of the final
Prospectus relating to a Shelf Registration Statement (as then amended or
supplemented if the Parent shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Holder or Participating
Broker-Dealer, as the case may be, to such Person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of such
Securities to such Person, and if such final Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities, unless such failure is the result of noncompliance by
the Parent with Section 2(b), 3(e) or 3(i) or the penultimate paragraph of
Section 3 hereof, or unless such defect shall have been cured by a document
incorporated or deemed to be incorporated by reference in the final Prospectus.
In connection with any Underwritten Offering permitted by Section 3, the Issuer
and the Guarantors will also indemnify the Underwriters, if any, selling
brokers, dealers and similar securities industry professionals participating in
the distribution, their officers and directors and each Person who controls any
such Persons (within the meaning of the 1933 Act and the 1934 Act) to the same
extent as provided above with respect to the indemnification of the Holders, if
requested in connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Issuer, the Guarantors, the Initial Purchasers and the other
selling Holders, and each of their respective directors, each of the officers of
the Issuer and the Guarantors who sign the Registration Statement and each
Person, if any, who controls the Issuer or the Guarantors, any Initial Purchaser
and any other selling Holder within the meaning of either Section 15 of the 1933
Act or Section 20 of the 1934 Act to the same extent as the foregoing indemnity
from the Issuer and the Guarantors to the Initial Purchasers and the Holders,
but only with reference to information relating to such Holder furnished to the
Issuer or the Parent in writing by such Holder expressly for use in any
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any Person in respect of which indemnity may be
sought pursuant to either paragraph (a) or paragraph (b) above, such Person (the
"INDEMNIFIED PARTY") shall promptly notify the Person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
Indemnifying Party, upon request of the Indemnified Party, shall retain counsel
reasonably satisfactory to the Indemnified Party to represent the Indemnified
Party and any others the Indemnifying Party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any Indemnified Party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnifying Party and the Indemnified Party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying Party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for (a) the fees and expenses of more than one separate
firm (in addition to one firm acting as local counsel) for the Initial
Purchasers and all
16
Persons, if any, who control any Initial Purchasers within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act, (b) the fees and
expenses of more than one separate firm (in addition to one firm acting as local
counsel) for the Parent, its directors, its officers who sign the Registration
Statement and each Person, if any, who controls the Parent within the meaning of
either such Section and (c) the fees and expenses of more than one separate firm
(in addition to one firm acting as local counsel) for all Holders and all
Persons, if any, who control any Holders within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as they are
incurred. In such case involving the Initial Purchasers and Persons who control
the Initial Purchasers, such firm shall be designated in writing by Morgan
Stanley & Co. Incorporated. In such case involving the Holders and such Persons
who control Holders, such firm shall be designated in writing by the Majority
Holders. In all other cases, such firm shall be designated by the Issuer and the
Parent. The Indemnifying Party shall not be liable for any settlement of any
proceeding effected without its written consent but, if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Party agrees to indemnify the Indemnified Party from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Party shall,
without the prior written consent of the Indemnified Party, effect any
settlement of any pending or threatened proceeding in respect of which such
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or paragraph
(b) of this Section 5 is unavailable to an Indemnified Party or insufficient in
respect of any losses, claims, damages or liabilities, then each Indemnifying
Party under such paragraph, in lieu of indemnifying such Indemnified Party
thereunder, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party or Parties on the one hand and of the Indemnified Party or Parties on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Issuer and the Guarantors and the
Holders 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 Issuer
and the Parent or by the Holders and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Holders' respective obligations to contribute pursuant to this
Section 5(d) are several in proportion to the respective principal amount of
Registrable Securities of such Holders that were registered pursuant to a
Registration Statement.
(e) The Issuer, the Guarantors and each Holder agree that it would not
be just or equitable if contribution pursuant to this Section 5 were determined
by pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5, no Holder shall be required to indemnify or
contribute any amount in excess of the amount by which the total price at which
17
Registrable Securities were sold by such Holder exceeds the amount of any
damages that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 5 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any Indemnified Party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section
5 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers, any Holder or any Person controlling any of the Initial
Purchasers or any Holder, or by or on behalf of the Issuer or the Guarantors,
its officers or directors or any Person controlling the Issuer or the
Guarantors, (iii) acceptance of any of the Exchange Securities and (iv) any sale
of Registrable Securities pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Issuer and the Guarantors have not
entered into, and on or after the date of this Agreement will not enter into,
any agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities 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 Issuer's and the Guarantors's other issued and outstanding securities under
any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Issuer and the Parent have obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or consent; provided, however, that no amendment, modification,
supplement, waiver or consent to any departure from the provisions of Section 5
hereof shall be effective as against any Holder of Registrable Securities unless
consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Issuer or the Parent by means of a notice given in accordance with the
provisions of this Section 6(c), which address initially is, with respect to the
Initial Purchasers, c/o Morgan Stanley & Co. Incorporated, 1585 Broadway, New
York, New York 10036, Attention: Michael Fusco and J.P. Morgan Securities, Inc.,
270 Park Avenue, New York, New York 10017, Attention: Maria Sramek; and (ii) if
to the Issuer or Parent, initially at the Issuer's address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 6(c).
18
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement. If any transferee of any
Holder shall acquire Registrable Securities, in any manner, whether by operation
of law or otherwise, such Registrable Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Registrable
Securities such Person shall be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement and such
Person shall be entitled to receive the benefits hereof. The Representatives and
the Initial Purchasers (in their respective capacities as Representatives and
Initial Purchasers) shall have no liability or obligation to the Issuer and the
Guarantors with respect to any failure by a Holder to comply with, or any breach
by any Holder of, any of the obligations of such Holder under this Agreement.
(e) Purchases and Sales of Securities. The Issuer and the Guarantors
shall not, and shall use its best efforts to cause its affiliates (as defined in
Rule 405 under the 1933 Act) not to, purchase and then resell or otherwise
transfer any Securities.
(f) Third Party Beneficiary. The Holders and the Initial Purchasers
shall be third party beneficiaries to the agreements made hereunder between the
Issuer and the Guarantors, on the one hand, and the Representatives, on the
other hand, and each of them shall have the right to enforce such agreements
directly to the extent it deems such enforcement necessary or advisable to
protect its rights or the rights of Holders or Initial Purchasers, respectively
hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by the laws of the
State of New York.
(j) 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
19
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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
COORS BREWING COMPANY
By: /s/ W. LEO KIELY III
--------------------------------
Name: W. Leo Kiely III
Title: Chief Executive Officer
ADOLPH COORS COMPANY
By: /s/ W. LEO KIELY III
--------------------------------
Name: W. Leo Kiely III
Title: Vice President
COORS DISTRIBUTING COMPANY
By: /s/ RON TRYGGESTAD
--------------------------------
Name: Ron Tryggestad
Title: Assistant Treasurer
COORS INTERNATIONAL MARKET
DEVELOPMENT, L.L.L.P.
By: COORS CARIBE, INC.
Title: General Partner
By: /s/ ROBERT D. KLUGMAN
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Name: Robert D. Klugman
Title: President
COORS WORLDWIDE, INC.
By: /s/ RONALD A. TRYGGESTAD
--------------------------------
Name: Ronald A. Tryggestad
Title: Assistant Treasurer
COORS CARIBE, INC.
By: /s/ ROBERT D. KLUGMAN
--------------------------------
Name: Robert D. Klugman
Title: President
Accepted as of the date hereof
MORGAN STANLEY & CO. INCORPORATED
Acting severally on behalf of itself and
the several Initial Purchasers named in
Schedule I hereto
By: Morgan Stanley & Co. Incorporated
By: /s/ MIKE FUSCO
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Name: Mike Fusco
Title: Executive Director
Accepted as of the date hereof
J.P. MORGAN SECURITIES INC.
Acting severally on behalf of itself and
the several Initial Purchasers named in
Schedule I hereto
By: J.P. Morgan Securities Inc.
By: /s/ MARIA SRAMEK
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Name: Maria Sramek
Title: Vice President