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Exhibit 10.6
PRESTIGE BRANDS, INC.
9-1/4% SENIOR SUBORDINATED NOTES DUE 2012
REGISTRATION RIGHTS AGREEMENT
New York, New York
April 6, 2004
Citigroup Global Markets Inc.
Banc of America Securities LLC
Merrill Lynch, Pierce, Fenner &
Smith Incorporated
As Representatives of the Initial Purchasers
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Prestige Brands, Inc., a corporation organized under the laws of the
state of Delaware (the "COMPANY"), proposes to issue and sell to Citigroup
Global Markets Inc., Banc of America Securities LLC and Merrill Lynch, Pierce,
Fenner & Smith Incorporated (the "INITIAL PURCHASERS"), $210,000,000 aggregate
principal amount of its 9-1/4% Senior Subordinated Notes due 2012 (the "NOTES"
and, together with the Guarantees (as defined below) the "SECURITIES"), upon the
terms set forth in the Purchase Agreement among the Company, the Guarantors (as
defined below) and the Initial Purchasers, dated March 30, 2004 (the "PURCHASE
AGREEMENT"), relating to the initial placement (the "INITIAL PLACEMENT") of the
Securities. The Notes are guaranteed (the "GUARANTEES") on an unsecured senior
subordinated basis by Prestige Brands International, LLC ("PRESTIGE
INTERNATIONAL"), Prestige Products Holdings, Inc. and each of the entities set
forth on the signature pages hereto (the "GUARANTORS"). To induce the Initial
Purchasers to enter into the Purchase Agreement and to satisfy a condition to
your obligations thereunder, the Company and the Guarantors agree with you for
your benefit and the benefit of the holders from time to time of the Securities
(including the Initial Purchasers) (each a "HOLDER" and, collectively, the
"HOLDERS"), and you agree on behalf of yourself and the Holders as follows:
1. DEFINITIONS. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 405 under the Act
and the terms "controlling" and "controlled" shall have meanings correlative
thereto.
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"Broker-Dealer" shall mean any broker or dealer registered as such
under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Closing Date" shall mean the date of the first issuance of the
Securities.
"Commission" shall mean the Securities and Exchange Commission.
"Deferral Period" shall have the meaning indicated in Section 4(k)(ii)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" shall mean the 180-day period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a registration
statement of the Company and the Guarantors on an appropriate form under the Act
with respect to the Registered Exchange Offer, all amendments and supplements to
such registration statement, including post-effective amendments thereto, in
each case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include any
Initial Purchaser) that is a Broker-Dealer and elects to exchange for New
Securities any Securities that it acquired for its own account as a result of
market-making activities or other trading activities (but not directly from the
Company or any Affiliate of the Company) for New Securities.
"Final Memorandum" shall have the meaning set forth in the Purchase
Agreement.
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Securities, dated
as of April 6, 2004, among the Company, the Guarantors and U.S. Bank National
Association, as trustee, as the same may be amended from time to time in
accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the preamble
hereto.
"Initial Purchaser" shall have the meaning set forth in the preamble
hereto.
"Losses" shall have the meaning set forth in Section 6(d) hereof.
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"Majority Holders" shall mean, on any date, Holders of a majority of
the aggregate principal amount of Securities registered under a Registration
Statement.
"Managing Underwriters" shall mean the investment banker or investment
bankers and manager or managers that administer an underwritten offering, if
any, under a Registration Statement.
"NASD Rules" shall mean the Conduct Rules and the By-Laws of the
National Association of Securities Dealers, Inc.
"New Securities" shall mean debt securities of the Company and the
Guarantors identical in all material respects to the Securities (except that the
cash interest and interest rate step-up provisions and the transfer restrictions
shall be modified or eliminated, as appropriate) to be issued under the
Indenture.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including without limitation a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Act), as amended or supplemented
by any prospectus supplement, with respect to the terms of the offering of any
portion of the Securities or the New Securities covered by such Registration
Statement, and all amendments and supplements thereto, including any and all
exhibits thereto and any information incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" shall mean the proposed offer of the
Company to issue and deliver to the Holders of the Securities that are not
prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the Securities, a like aggregate principal amount of the
New Securities.
"Registrable Securities" shall mean (i) Securities other than those
that (A) have been registered under a Registration Statement and exchanged or
disposed of in accordance therewith or (B) are eligible to be sold to the public
pursuant to Rule 144(k) under the Act or any successor rule or regulation
thereto that may be adopted by the Commission and (ii) any New Securities resale
of which by the Holder thereof requires compliance with the prospectus delivery
requirements of the Act.
"Registration Default" shall have the meaning set forth in Section 8
hereto.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the New Securities, as the case may be, pursuant to the provisions of this
Agreement, any 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 by
reference therein.
"Securities" shall have the meaning set forth in the preamble hereto.
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"Shelf Registration" shall mean a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company and the Guarantors pursuant to the provisions of
Section 3 hereof which covers some or all of the Securities or New Securities,
as applicable, on an appropriate form under Rule 415 under the Act, or any
similar rule that may be adopted by the Commission, 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 by reference therein.
"Special Interest" shall have the meaning set forth in Section 8
hereof.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"underwriter" shall mean any underwriter of Securities in connection
with an offering thereof under a Shelf Registration Statement.
2. REGISTERED EXCHANGE OFFER. To the extent permitted by applicable
law or applicable interpretations of the staff of the Commission, (a) the
Company and the Guarantors shall prepare and, not later than 90 days following
the Closing Date (or if such 90th day is not a Business Day, the next succeeding
Business Day), shall file with the Commission the Exchange Offer Registration
Statement with respect to the Registered Exchange Offer. The Company and the
Guarantors shall use their reasonable best efforts to cause the Exchange Offer
Registration Statement to become effective under the Act within 180 days of the
Closing Date (or if such 180th day is not a Business Day, the next succeeding
Business Day).
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Registered Exchange Offer, it
being the objective of such Registered Exchange Offer to enable each Holder
electing to exchange Securities for New Securities (assuming that such Holder is
not an Affiliate of the Company, acquires the New Securities in the ordinary
course of such Holder's business, has no arrangements with any person to
participate in the distribution of the New Securities and is not prohibited by
any law or policy of the Commission from participating in the Registered
Exchange Offer) to trade such New Securities from and after their receipt
without any limitations or restrictions under the Act and without material
restrictions under the securities laws of a substantial proportion of the
several states of the United States.
(c) In connection with the Registered Exchange Offer, the Company and
the Guarantors shall:
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(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than
30 days and not more than 45 days after the date notice thereof is
mailed to the Holders (or, in each case, longer if required by
applicable law);
(iii) use their reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective under the Act,
supplemented and amended as required under the Act, to ensure that it
is available for sales of New Securities by Exchanging Dealers during
the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee, the New Securities Trustee or an
Affiliate of either of them;
(v) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last Business
Day on which the Registered Exchange Offer is open;
(vi) if required by the Commission, prior to effectiveness of
the Exchange Offer Registration Statement, provide a supplemental
letter to the Commission (A) stating that the Company and the
Guarantors are conducting the Registered Exchange Offer in reliance on
the position of the Commission in EXXON CAPITAL HOLDINGS CORPORATION
(pub. avail. May 13, 1988), MORGAN STANLEY AND CO., INC. (pub. avail.
June 5, 1991); and (B) including a representation that the Company and
the Guarantors have not entered into any arrangement or understanding
with any person to distribute the New Securities to be received in the
Registered Exchange Offer and that, to the best of the Company's
information and belief, each Holder participating in the Registered
Exchange Offer is acquiring the New Securities in the ordinary course
of business and has no arrangement or understanding with any person to
participate in the distribution of the New Securities; and
(vii) comply in all material respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Company shall:
(i) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver or cause to be delivered to the Trustee for
cancellation in accordance with Section 4(s) all Securities so
accepted for exchange; and
(iii) use its reasonably best efforts to cause the Trustee
promptly to authenticate and deliver to each Holder of Securities a
principal amount of New
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Securities equal to the principal amount of the Securities of such
Holder so accepted for exchange.
(e) Each Holder is hereby deemed to acknowledge and agree that any
Broker-Dealer and any such Holder using the Registered Exchange Offer to
participate in a distribution of the New Securities (x) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission in EXXON CAPITAL HOLDINGS CORPORATION (pub. avail.
May 13, 1988) and MORGAN STANLEY AND CO., INC. (pub. avail. June 5, 1991), as
interpreted in the Commission's letter to Shearman & Sterling dated July 2, 1993
and similar no-action letters; and (y) must comply with the registration and
prospectus delivery requirements of the Act in connection with any secondary
resale transaction, which 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 under the Act if the resales are of New
Securities obtained by such Holder in exchange for Securities acquired by such
Holder directly from the Company or one of its Affiliates. Accordingly, each
Holder participating in the Registered Exchange Offer shall be required to
represent to the Company that, at the time of the consummation of the Registered
Exchange Offer:
(i) any New Securities received by such Holder will be
acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding with
any person to participate in the distribution of the Securities or the
New Securities within the meaning of the Act; and
(iii) such Holder is not an Affiliate of the Company or any of
the Guarantors.
(f) If any Initial Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange of
Securities constituting any portion of an unsold allotment, at the request of
such Initial Purchaser, the Company and the Guarantors shall issue and deliver
to such Initial Purchaser or the person purchasing New Securities registered
under a Shelf Registration Statement as contemplated by Section 3 hereof from
such Initial Purchaser, in exchange for such Securities, a like principal amount
of New Securities. The Company and the Guarantors shall use their respective
best efforts to cause the CUSIP Service Bureau to issue the same CUSIP number
for such New Securities as for New Securities issued pursuant to the Registered
Exchange Offer.
3. SHELF REGISTRATION.
(a) If (i) due to any change in law or applicable interpretations
thereof by the Commission's staff, the Company determines upon advice of its
outside counsel that it is not permitted to effect the Registered Exchange Offer
as contemplated by Section 2 hereof; (ii) the Registered Exchange Offer is not
consummated within 45 days of the date of the effectiveness of the Exchange
Offer Registration Statement; (iii) any Initial Purchaser so requests in writing
with respect to Securities that are not eligible to be exchanged for New
Securities in the Registered Exchange Offer; or (iv) any Holder (other than an
Initial Purchaser) notifies the Company in
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writing that is not eligible to participate in the Registered Exchange Offer,
the Company and the Guarantors shall effect a Shelf Registration Statement in
accordance with subsection (b) below; PROVIDED, HOWEVER, that the Company shall
only be required to register Securities under a Shelf Registration Statement for
persons who have identified themselves to the Company as Holders of such
Securities.
(b) (i) The Company and the Guarantors shall as promptly as
practicable (but in no event more than 90 days after so required or requested
pursuant to this Section 3), file with the Commission and shall use their
reasonable best efforts to cause to be declared effective under the Act within
90 days after so required or requested, a Shelf Registration Statement relating
to the offer and sale of the Securities or the New Securities, as applicable, by
the Holders thereof from time to time in accordance with the methods of
distribution elected by such Holders and set forth in such Shelf Registration
Statement; PROVIDED, HOWEVER, that nothing in this Section 3(b) shall require
the filing of a Shelf Registration Statement prior to the deadline for filing an
Exchange Offer Registration Statement as set forth in Section 2(a); PROVIDED,
FURTHER, HOWEVER, that no Holder (other than an Initial Purchaser) shall be
entitled to have the Securities held by it covered by such Shelf Registration
Statement unless such Holder agrees in writing to be bound by all of the
provisions of this Agreement applicable to such Holder; PROVIDED, FURTHER, that
with respect to New Securities received by an Initial Purchaser in exchange for
Securities constituting any portion of an unsold allotment, the Company and the
Guarantors may, if permitted by current interpretations by the Commission's
staff, file a post-effective amendment to the Exchange Offer Registration
Statement containing the information required by Item 507 or 508 of Regulation
S-K, as applicable, in satisfaction of its obligations under this subsection
with respect thereto, and any such Exchange Offer Registration Statement, as so
amended, shall be referred to herein as, and governed by the provisions herein
applicable to, a Shelf Registration Statement.
(ii) The Company and the Guarantors shall use their respective
reasonable best efforts to keep the Shelf Registration Statement
continuously effective, supplemented and amended as required by the
Act, in order to permit the Prospectus forming part thereof to be
usable by Holders for (A) two years from the date the Shelf
Registration Statement is declared effective by the Commission or (B)
such shorter period that will terminate on the date upon which all the
Securities or New Securities, as applicable, covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement (in any such case, such period being called the
"SHELF REGISTRATION PERIOD"). The Company and the Guarantors shall not
be obligated to amend or supplement any Shelf Registration Statement
more than once per calendar quarter to reflect additional Holders. The
Company and the Guarantors shall be deemed not to have used their
respective best efforts to keep the Shelf Registration Statement
effective during the Shelf Registration Period if they voluntarily
take any action that would result in Holders of Securities covered
thereby not being able to offer and sell such Securities at any time
during the Shelf Registration Period, unless such action is (x)
required by applicable law or otherwise undertaken by the Company in
good faith and for valid business reasons (not including avoidance of
the Company's obligations hereunder), including the
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acquisition or divestiture of assets, and (y) permitted pursuant to
Section 4(k)(ii) hereof.
(iii) The Company and the Guarantors shall cause the Shelf
Registration Statement and the related Prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration
Statement or such amendment or supplement, (A) to comply in all
material respects with the applicable requirements of the Act; and (B)
not to contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein (in the case of the Prospectus,
in the light of the circumstances under which they were made) not
misleading.
4. ADDITIONAL REGISTRATION PROCEDURES. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company and the Guarantors shall:
(i) furnish to each of the Representatives and counsel for the
Holders, as soon as practicable prior to the filing thereof with the
Commission, a copy of any Exchange Offer Registration Statement and
any Shelf Registration Statement, and each amendment thereof and each
amendment or supplement, if any, to the Prospectus included therein
(including all documents incorporated by reference therein after the
initial filing) and shall use its reasonable best efforts to reflect
in each such document, when so filed with the Commission, such
comments as the Representatives reasonably propose;
(ii) if permitted by the Commission, include the information
set forth in Annex A hereto on the facing page of the Exchange Offer
Registration Statement, in Annex B hereto in the forepart of the
Exchange Offer Registration Statement in a section setting forth
details of the Exchange Offer, in Annex C hereto in the underwriting
or plan of distribution section of the Prospectus contained in the
Exchange Offer Registration Statement, and in Annex D hereto in the
letter of transmittal delivered pursuant to the Registered Exchange
Offer;
(iii) if requested by an Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as
applicable, in the Prospectus contained in the Exchange Offer
Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the
names of the Holders that propose to sell Securities pursuant to the
Shelf Registration Statement as selling security holders.
(b) The Company shall ensure that:
(i) any Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any amendment or supplement
thereto complies in all material respects with the Act; and
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(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(c) The Company and the Guarantors shall advise you, the selling
Holders of Securities covered by any Shelf Registration Statement and any
Exchanging Dealer under any Exchange Offer Registration Statement that has
provided in writing to the Company and the Guarantors a telephone or facsimile
number and address for notices, and, if requested by you or any such Holder or
Exchanging Dealer, shall confirm such advice in writing (which notice pursuant
to clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the
use of the Prospectus until the Company and the Guarantors shall have remedied
the basis for such suspension):
(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration Statement
or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose;
(iv) of the receipt by the Company and the Guarantors of any
notification with respect to the suspension of the qualification of
the securities included therein for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires any change in
the Registration Statement or the Prospectus so that, as of such date,
they (A) do not contain any untrue statement of a material fact and
(B) do not omit to state a material fact required to be stated therein
or necessary to make the statements therein (in the case of the
Prospectus, in the light of the circumstances under which they were
made) not misleading.
(d) The Company and the Guarantors shall use their respective
commercially reasonable best efforts to prevent the issuance of any order
suspending the effectiveness of any Registration Statement or the qualification
of the securities therein for sale in any jurisdiction and, if issued, to obtain
as soon as possible the withdrawal thereof.
(e) The Company and the Guarantors shall furnish to each selling
Holder of Securities covered by any Shelf Registration Statement, without
charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, without any material incorporated therein by
reference or all exhibits thereto unless requested by such Holder.
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(f) The Company and the Guarantors shall, during the Shelf
Registration Period, deliver to each selling Holder of Securities covered by any
Shelf Registration Statement, without charge, as many copies of the Prospectus
(including the preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may reasonably
request. The Company and the Guarantors consent to the use in accordance with
the terms of this Agreement of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Securities in connection with the
offering and sale of the Securities covered by the Prospectus, or any amendment
or supplement thereto, included in the Shelf Registration Statement.
(g) The Company and the Guarantors shall furnish to each Exchanging
Dealer which so requests, without charge, at least one copy of the Exchange
Offer Registration Statement and any post-effective amendment thereto, without
any materials incorporated by reference therein or exhibits thereto unless
requested by such Exchanging Dealer.
(h) The Company and the Guarantors shall promptly deliver to each
Initial Purchaser, each Exchanging Dealer and each other person required to
deliver a Prospectus during the Exchange Offer Registration Period, without
charge, as many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as any such
person may reasonably request. The Company and the Guarantors consent to the use
in accordance with the terms of this Agreement of the Prospectus or any
amendment or supplement thereto by any Initial Purchaser, any Exchanging Dealer
and any such other person that may be required to deliver a Prospectus following
the Registered Exchange Offer in connection with the offering and sale of the
New Securities covered by the Prospectus, or any amendment or supplement
thereto, included in the Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of
Securities or New Securities pursuant to any Registration Statement, the Company
and the Guarantors shall arrange, if necessary, for the qualification of the
Securities or the New Securities for sale under the laws of such jurisdictions
as any selling Holder shall reasonably request and shall maintain such
qualification in effect so long as required; PROVIDED that in no event shall the
Company and the Guarantors be obligated to qualify to do business in any
jurisdiction where they are not then so qualified or to take any action that
would subject them to service of process in suits or subject them to taxation,
other than those arising out of the Initial Placement, the Registered Exchange
Offer or any offering pursuant to a Shelf Registration Statement, in any such
jurisdiction where they are not then so subject.
(j) The Company and the Guarantors shall cooperate with the selling
Holders of Securities to facilitate the timely preparation and delivery of
certificates representing New Securities or Securities to be issued or sold
pursuant to any Registration Statement free of any restrictive legends and in
such denominations and registered in such names as such selling Holders may
reasonably request.
(k) (i) Subject to paragraph (ii) below, upon the occurrence of any
event contemplated by subsections (c)(ii) through (v) above, the Company and the
Guarantors shall promptly (or within the time period provided for by clause (ii)
hereof, if applicable) prepare a post-effective amendment to the applicable
Registration Statement or an amendment or
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supplement to the related Prospectus or file any other required document so
that, as thereafter delivered to initial purchasers of the securities included
therein, the Prospectus will not include an untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. In such circumstances, the period of effectiveness of
the Exchange Offer Registration Statement provided for in Section 2 and the
Shelf Registration Statement provided for in Section 3(b) shall each be extended
by the number of days from and including the date of the giving of a notice of
suspension pursuant to Section 4(c) to and including the date when the Initial
Purchasers, the Holders of the Securities and any known Exchanging Dealer shall
have received such amended or supplemented Prospectus pursuant to this Section.
(ii) Upon the occurrence or existence of any pending corporate
development or any other material event that, in the reasonable
judgment of the Company, makes it appropriate to suspend the
availability of a Shelf Registration Statement and the related
Prospectus, the Company and the Guarantors shall give notice (without
notice of the nature or details of such events) to the Holders that
the availability of the Shelf Registration is suspended and, upon
actual receipt of any such notice, each Holder agrees not to sell any
Registrable Securities pursuant to the Shelf Registration until such
Holder's receipt of copies of the supplemented or amended Prospectus
provided for in Section 3(i) hereof, or until it is advised in writing
by the Company and the Guarantors that the Prospectus may be used, and
has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus.
The period during which the availability of the Shelf Registration and
any Prospectus is suspended (the "Deferral Period") shall not exceed
45 days in any three-month period or 90 days in any twelve-month
period.
(l) Not later than the effective date of any Registration Statement,
the Company and the Guarantors shall provide a CUSIP number for the Securities
or the New Securities, as the case may be, registered under such Registration
Statement and provide the Trustee with printed certificates for such Securities
or New Securities, in a form eligible for deposit with The Depository Trust
Company.
(m) The Company and the Guarantors shall comply with all applicable
rules and regulations of the Commission and shall make generally available to
their security holders an earnings statement satisfying the provisions of
Section 11(a) of the Act as soon as practicable after the effective date of the
applicable Registration Statement and in any event no later than 45 days after
the end of a 12-month period (or 90 days, if such period is a fiscal year)
beginning with the first month of the Company's first fiscal quarter commencing
after the effective date of the applicable Registration Statement.
(n) The Company and the Guarantors shall cause the Indenture to be
qualified under the Trust Indenture Act in a timely manner.
(o) The Company and the Guarantors may require each Holder of
securities to be sold pursuant to any Shelf Registration Statement to furnish to
the Company and the Guarantors
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such information regarding the Holder and the distribution of such securities as
the Company and the Guarantors may from time to time reasonably require for
inclusion in such Registration Statement. The Company and the Guarantors may
exclude from such Shelf Registration Statement the Securities of any Holder that
fails to furnish such information within a reasonable time after receiving such
request.
(p) In the case of any Shelf Registration Statement, the Company and
the Guarantors shall enter into customary agreements (including, if requested by
the Majority Holders, an underwriting agreement in customary form) and take all
other appropriate actions in order to expedite or facilitate the registration or
the disposition of the Securities, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set forth
in Section 6 hereof.
(q) In the case of any Shelf Registration Statement, the Company and
the Guarantors shall, if requested:
(i) make reasonably available for inspection by the selling
Holders of Securities to be registered thereunder, any underwriter
participating in any disposition pursuant to such Shelf Registration
Statement, and any attorney, accountant or other agent retained by the
selling Holders or any such underwriter all relevant financial and
other records and pertinent corporate documents of the Company and its
subsidiaries; PROVIDED that if such information is deemed confidential
by the Company or the Guarantors, each Person receiving such
information shall take all actions reasonably necessary to protect
such confidentiality;
(ii) cause the Company's officers, directors, employees,
accountants and auditors to supply all relevant information reasonably
requested by the selling Holders or any such underwriter, attorney,
accountant or agent in connection with any such Shelf Registration
Statement as is customary for similar due diligence examinations;
(iii) in connection with an underwritten offering pursuant to
such Shelf Registration Statement, make such representations and
warranties to the selling Holders of Securities registered thereunder
and the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in primary underwritten
offerings and covering matters including, but not limited to, those
set forth in the Purchase Agreement;
(iv) in connection with an underwritten offering pursuant to
such Shelf Registration Statement, obtain opinions of counsel to the
Company and the Guarantors and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any) addressed to each
selling Holder and the underwriters, if any, covering such matters as
are customarily covered in opinions requested in underwritten
offerings
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and such other matters as may be reasonably requested by such Holders
and underwriters;
(v) in connection with an underwritten offering pursuant to
such Shelf Registration Statement, obtain "comfort" letters and
updates thereof from the independent certified public accountants of
the Company (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Registration
Statement), addressed to each selling Holder of Securities registered
thereunder and the underwriters, if any, in customary form and
covering matters of the type customarily covered in "comfort" letters
in connection with primary underwritten offerings; and
(vi) in connection with an underwritten offering pursuant to
such Shelf Registration Statement, deliver such documents and
certificates as may be reasonably requested by the Majority Holders or
the Managing Underwriters, if any, including those to evidence
compliance with Section 4(k) and with any customary conditions
contained in the underwriting agreement or other agreement entered
into by the Company and the Guarantors.
The actions set forth in clauses (iii), (v) and (vi) of this paragraph (q) shall
be performed at the effectiveness of such Registration Statement and each
post-effective amendment thereto. The actions set forth in clause (iv) shall be
performed at, and the actions set forth in clauses (iii), (v) and (vi) shall be
reaffirmed at, each closing under any underwriting or similar agreement as and
to the extent required thereunder.
(r) In the case of any Exchange Offer Registration Statement, the
Company and the Guarantors shall, if requested by an Initial Purchaser, or by a
broker dealer that holds Securities that were acquired as a result of market
making or other trading activities:
(i) make reasonably available for inspection by the requesting
party, and any attorney, accountant or other agent retained by the
requesting party, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its
subsidiaries; PROVIDED that if such information is deemed confidential
by the Company or the Guarantors, each Person receiving such
information shall take all actions reasonably necessary to protect
such confidentiality;
(ii) cause the Company's officers, directors, employees,
accountants and auditors to supply all relevant information reasonably
requested by the requesting party or any such attorney, accountant or
agent in connection with any such Registration Statement as is
customary for similar due diligence examinations;
(iii) make such representations and warranties to the requesting
party, in form, substance and scope as are customarily made by issuers
to underwriters
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in primary underwritten offerings and covering matters including, but
not limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the requesting party and its
counsel, addressed to the requesting party, covering such matters as
are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by the
requesting party or its counsel;
(v) obtain "comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to the
requesting party, in customary form and covering matters of the type
customarily covered in "comfort" letters in connection with primary
underwritten offerings, or if requested by the requesting party or its
counsel in lieu of a "comfort" letter, an agreed-upon procedures
letter under Statement on Auditing Standards No. 35, covering matters
requested by the requesting party or its counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by the requesting party or its counsel, including
those to evidence compliance with Section 4(k) and with conditions
customarily contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section shall be performed at the close of the Registered Exchange Offer and the
effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(s) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to the Company (or to such other person as
directed by the Company) in exchange for the New Securities, the Company shall
mark, or caused to be marked, on the Securities so exchanged that such
Securities are being cancelled in exchange for the New Securities. In no event
shall the Securities be marked as paid or otherwise satisfied.
(t) The Company and the Guarantors shall use their respective
reasonable best efforts if the Securities have been rated prior to the initial
sale of such Securities, to confirm such ratings will apply to the Securities or
the New Securities, as the case may be, covered by a Registration Statement.
(u) In the event that any Broker-Dealer shall underwrite any
Securities or participate as a member of an underwriting syndicate or selling
group or "assist in the distribution" (within the meaning of the NASD Rules)
thereof, whether as a Holder of such Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect
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thereof, or otherwise, the Company and the Guarantors shall assist such
Broker-Dealer in complying with the NASD Rules.
(v) The Company shall use its reasonable best efforts to take all
other steps necessary to effect the registration of the Securities or the New
Securities, as the case may be, covered by a Registration Statement.
5. REGISTRATION EXPENSES. The Company shall bear all reasonable
expenses incurred in connection with the performance of its obligations under
Sections 2, 3 and 4 hereof and, in the event of any Shelf Registration
Statement, will reimburse the Holders for the reasonable fees and disbursements
of one firm or counsel (which shall initially be Weil, Gotshal & Manges LLP, but
which may be another nationally recognized law firm experienced in securities
matters designated by the Majority Holders) to act as counsel for the Holders in
connection therewith.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company and the
Guarantors, jointly and severally, agree to indemnify and hold harmless each
Holder of Securities or New Securities, as the case may be, covered by any
Registration Statement, each Initial Purchaser and, with respect to any
Prospectus delivery as contemplated in Section 4(h) hereof, each Exchanging
Dealer, the directors, officers, employees, Affiliates and agents of each such
Holder, Initial Purchaser or Exchanging Dealer and each person who controls any
such Holder, Initial Purchaser or Exchanging Dealer within the meaning of either
the Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement as originally filed or in any amendment thereof, or
in any preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of any preliminary
Prospectus or the Prospectus, in the light of the circumstances under which they
were made) not misleading, and agree to reimburse each such indemnified party,
as incurred, for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that the Company and the Guarantors will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company and the
Guarantors by or on behalf of the party claiming indemnification specifically
for inclusion therein. This indemnity agreement shall be in addition to any
liability that the Company and the Guarantors may otherwise have.
The Company and the Guarantors also, jointly and severally, agree to
indemnify as provided in this Section 6(a) or contribute as provided in Section
6(d) hereof to Losses of each underwriter, if any, of Securities or New
Securities, as the case may be, registered under a Shelf Registration Statement,
their directors, officers, employees, Affiliates or agents and each person who
controls such underwriter on substantially the same basis as that of the
indemnification of
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the Initial Purchasers and the selling Holders provided in this Section 6(a) and
shall, if requested by any Holder, enter into an underwriting agreement
reflecting such agreement, as provided in Section 4(p) hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Initial Purchaser that is a Holder, in such capacity) severally
and not jointly agrees to indemnify and hold harmless the Company and the
Guarantors, each of their directors, each of their officers who signs such
Registration Statement and each person who controls the Company or any of the
Guarantors within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company and the Guarantors to each
such Holder, but only with reference to written information relating to such
Holder furnished to the Company or any of the Guarantors by or on behalf of such
Holder specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability that
any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 or notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure materially prejudices the
indemnifying party; and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel (including local
counsel) of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel, other than local counsel if
not appointed by the indemnifying party, retained by the indemnified party or
parties except as set forth below); PROVIDED, HOWEVER, that such counsel shall
be reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel (which shall be one firm and
any necessary local counsel) to represent the indemnified party in an action,
the indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest; (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to the
indemnifying party; (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action;
or (iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. It is understood,
however, that the Company shall, in connection with any one such 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
reasonable fees and expenses of only one separate firm of attorneys (in addition
to any local counsel) at any time for all such indemnified parties, which
16
<Page>
firm, if the indemnifying parties include the Initial Purchasers, shall be
designated in writing by Citigroup. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall
have a joint and several obligation to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending any loss, claim,
liability, damage or action) (collectively "Losses") to which such indemnified
party may be subject in such proportion as is appropriate to reflect the
relative benefits received by such indemnifying party, on the one hand, and such
indemnified party, on the other hand, from the Initial Placement and the
Registration Statement which resulted in such Losses; PROVIDED, HOWEVER, that in
no case shall any Initial Purchaser be responsible, in the aggregate, for any
amount in excess of the purchase discount or commission applicable to such
Security, or in the case of a New Security, applicable to the Security that was
exchangeable into such New Security, as set forth in the Final Memorandum, nor
shall any underwriter be responsible for any amount in excess of the
underwriting discount or commission applicable to the securities purchased by
such underwriter under the Registration Statement which resulted in such Losses.
If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the indemnifying party and the indemnified party shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on the
one hand, and such indemnified party, on the other hand, in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company and the
Guarantors shall be deemed to be equal to the total net proceeds from the
Initial Placement (before deducting expenses) as set forth in the Final
Memorandum. Benefits received by the Initial Purchasers shall be deemed to be
equal to the total purchase discounts and commissions as set forth on the cover
page of the Final Memorandum, and benefits received by any other Holders shall
be deemed to be equal to the value of receiving Securities or New Securities, as
applicable, registered under the Act. Benefits received by any underwriter shall
be deemed to be equal to the total underwriting discounts and commissions, as
set forth on the cover page of the Prospectus forming a part of the Registration
Statement which resulted in such Losses. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information provided by the indemnifying party, on the one hand,
or by the indemnified party, on the other hand, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The parties agree that it would not
be just and equitable if contribution were determined by pro rata allocation
(even if the Holders were treated as one entity for such purpose) or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act)
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shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person who
controls a Holder within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who controls the Company
or any of the Guarantors within the meaning of either the Act or the Exchange
Act, each officer of the Company or any of the Guarantors who shall have signed
the Registration Statement and each director of the Company or any of the
Guarantors shall have the same rights to contribution as the Company, subject in
each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Company and the Guarantors or any of the indemnified persons referred to in
this Section 6, and will survive the sale by a Holder of securities covered by a
Registration Statement.
7. UNDERWRITTEN REGISTRATIONS. (a) If any of the Securities or New
Securities, as the case may be, covered by any Shelf Registration Statement are
to be sold in an underwritten offering, the Managing Underwriters shall be
selected by the Majority Holders.
(b) No person may participate in any underwritten offering pursuant
to any Shelf Registration Statement, unless such person (i) agrees to sell such
person's Securities or New Securities, as the case may be, on the basis
reasonably provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements; and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
8. SPECIAL INTEREST. If (a) on or prior to the 90th day following
the original issue date of the Securities, neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement has been filed with
the Commission, (b) on or prior to the 180th day following the original issue
date of the Securities, the Exchange Offer Registration Statement has not been
declared effective or on or prior to the 90th day following the Company's
obligation to file the Shelf Registration Statement, the Shelf Registration
Statement has not been filed, (c) on or prior to the 45th day following the date
the Exchange Offer Registration Statement is first declared effective, the
Registered Exchange Offer has not been consummated, or (d) after either the
Exchange Offer Registration Statement or the Shelf Registration Statement has
been declared effective, such Registration Statement thereafter ceases to be
effective or usable in connection with resales of Securities or New Securities
in accordance with and during the periods specified in this Agreement (each such
event referred to in clauses (a) through (d), a ("REGISTRATION DEFAULT"),
interest ("SPECIAL INTEREST") will accrue on the principal amount of the
Securities and the New Securities (in addition to the stated interest on the
Securities and New Securities) from and including the date on which any such
Registration Default shall occur to but excluding the date on which all
Registration Defaults have been cured. Special Interest will accrue at a rate of
0.25% per annum during the 90-day period immediately following the occurrence of
such Registration Default and shall increase by 0.25% per annum at the end of
each subsequent 90-day period, but in no event shall such rate exceed 1.00% per
annum.
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All obligations of the Company and the Guarantors set forth in the
preceding paragraph that are outstanding with respect to any Security at the
time such Security is exchanged for a New Security shall survive until such time
as all such obligations with respect to such Security have been satisfied in
full.
9. NO INCONSISTENT AGREEMENTS. The Company has not entered into, and
agrees not to enter into, any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders herein or that otherwise
conflicts with the provisions hereof.
10. AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Company has
obtained the written consent of the holders of a majority of the aggregate
principal amount of the Registrable Securities outstanding; PROVIDED that, with
respect to any matter that directly or indirectly affects the rights of any
Initial Purchaser hereunder, the Company shall obtain the written consent of
each such Initial Purchaser against which such amendment, qualification,
supplement, waiver or consent is to be effective; PROVIDED, FURTHER, that no
amendment, qualification, supplement, waiver or consent with respect to Section
8 hereof shall be effective as against any Holder of Registered Securities
unless consented to in writing by such Holder; and PROVIDED, FURTHER, that the
provisions of this Article 10 may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Initial Purchasers and each Holder. Notwithstanding the foregoing (except the
foregoing provisos), a waiver or consent to departure from the provisions hereof
with respect to a matter that relates exclusively to the rights of Holders whose
Securities or New Securities, as the case may be, are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by the Majority Holders, determined on the
basis of Securities or New Securities, as the case may be, being sold rather
than registered under such Registration Statement.
11. NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such holder
to the Company in accordance with the provisions of this Section 11, which
address initially is, with respect to each Holder, the address of such Holder
maintained by the Registrar under the Indenture;
(b) if to you, initially at the respective addresses set forth in the
Purchase Agreement; and
(c) if to the Company or the Guarantors, initially at their address
set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
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The Initial Purchasers, the Company or the Guarantors by notice to the
other parties may designate additional or different addresses for subsequent
notices or communications.
12. REMEDIES. Each Holder, in addition to being entitled to exercise
all rights provided to it herein, in the Indenture or in 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
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions this Agreement and hereby
agrees to waive in any action for specific performance the defense that a remedy
at law would be adequate.
13. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective successors and assigns,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Securities and the New Securities, and
the indemnified persons referred to in Section 6 hereof. The Company hereby
agrees to extend the benefits of this Agreement to any Holder of Securities and
the New Securities, and any such Holder may specifically enforce the provisions
of this Agreement as if an original party hereto.
14. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
15. HEADINGS. The section headings used herein are for convenience
only and shall not affect the construction hereof.
16. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed in the State of New York. The parties hereto each
hereby waive any right to trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Agreement.
17. SEVERABILITY. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
18. SECURITIES HELD BY THE COMPANY, ETC. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or New Securities is required hereunder, Securities or New Securities, as
applicable, held by the Company or its Affiliates (other than subsequent Holders
of Securities or New Securities if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Securities or New
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement among the
Company, the Guarantors and the several Initial Purchasers.
Very truly yours,
PRESTIGE BRANDS, INC.
By: /S/ PETER J. ANDERSON
-----------------------------------
Name: Peter J. Anderson
Title: Vice President
PRESTIGE BRANDS INTERNATIONAL, LLC
PRESTIGE PRODUCTS HOLDINGS, INC.
PRESTIGE HOUSEHOLD HOLDINGS, INC.
PRESTIGE HOUSEHOLD BRANDS, INC.
THE COMET PRODUCTS CORPORATION
THE SPIC AND SPAN COMPANY
PRESTIGE ACQUISITION HOLDINGS LLC
MEDTECH HOLDINGS, INC.
MEDTECH PRODUCTS, INC.
PECOS PHARMACEUTICAL, INC.
THE CUTEX COMPANY
PRESTIGE PERSONAL CARE HOLDINGS, INC.
PRESTIGE PERSONAL CARE, INC.
THE DENOREX COMPANY
BONITA BAY HOLDINGS, INC.
PRESTIGE BRANDS HOLDINGS, INC.
PRESTIGE BRANDS FINANCIAL CORPORATION
PRESTIGE BRANDS INTERNATIONAL, INC.
By: /S/ PETER J. ANDERSON
-----------------------------
Name: Peter J. Anderson
Title: Vice President
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The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
CITIGROUP GLOBAL MARKETS INC.
BANC OF AMERICA SECURITIES LLC
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: CITIGROUP GLOBAL MARKETS INC.
By /S/ JOHN MCAULEY
----------------------------
Name: John McAuley
Title: Vice President
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ANNEX A
Each broker-dealer that receives new securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such new securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act. This prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of new
securities received in exchange for securities where such securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities. The company has agreed that, starting on the expiration date
and ending on the close of business 180 days after the expiration date, it will
make this prospectus available to any broker-dealer for use in connection with
any such resale. See "Plan of Distribution."
A-1
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ANNEX B
Each broker-dealer that receives new securities for its own account in
exchange for securities, where such securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such new securities. See "Plan of Distribution."
B-1
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ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives new securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such new securities. This
prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of new securities received in
exchange for securities where such securities were acquired as a result of
market-making activities or other trading activities. The company and the
guarantors have agreed that, starting on the expiration date and ending on the
close of business 180 days after the expiration date, they will make this
prospectus, as amended or supplemented, available to any broker-dealer for use
in connection with any such resale. In addition, until __________, ______, all
dealers effecting transactions in the new securities may be required to deliver
a prospectus.
The company will not receive any proceeds from any sale of new
securities by broker-dealers. New securities received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the new securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such new
securities. Any broker-dealer that resells new securities that were received by
it for its own account pursuant to the Exchange Offer and any broker or dealer
that participates in a distribution of such new securities may be deemed to be
an "underwriter" within the meaning of the Act and any profit of any such resale
of new securities and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the Act. The Letter
of Transmittal states that by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Act.
For a period of 180 days after the expiration date, the company and
the guarantors will promptly send additional copies of this prospectus and any
amendment or supplement to this prospectus to any broker-dealer that requests
such documents in the Letter of Transmittal. The company has agreed to pay all
expenses incident to the Exchange Offer (including the expenses of one counsel
for the holder of the securities) other than commissions or concessions of any
brokers or dealers and will indemnify the holders of the securities (including
any broker-dealers) against certain liabilities, including liabilities under the
Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
C-1
<Page>
ANNEX D
RIDER A
PLEASE FILL IN YOUR NAME AND ADDRESS BELOW IF YOU ARE A BROKER-DEALER AND WISH
TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name: ______________________________
Address: ______________________________
______________________________
RIDER B
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any person to participate in a
distribution of the New Securities. If the undersigned is a Broker-Dealer that
will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for New Securities were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such New Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Act.