Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a 88 621K
Business-Combination Transaction
2: EX-1 Purchase Agreement Dated July 10, 1998 31 121K
3: EX-4.(C) 4th Amendment to Loan Documents, Dated as of April 12 44K
28, 1998
4: EX-4.(F) Registration Rights Agreement Dated July 15, 1998 24 82K
5: EX-12 Statement Re Computation of Ratios 2± 13K
6: EX-21 Significant Subsidiaries of the Registrant 1 6K
7: EX-23.(A) Consent of Arthur Andersen, LLP 1 6K
8: EX-25 Statement of Eligibility of Trustee 27 93K
9: EX-27 Financial Data Schedule 2 7K
10: EX-99.(A) Form of Letter of Transmittal 22 76K
11: EX-99.(B) Form of Notice of Guaranteed Delivery 5 14K
EX-4.(F) — Registration Rights Agreement Dated July 15, 1998
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EXHIBIT 4(f)
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made and entered
into as of July 15, 1998 by and among Republic Group Incorporated, a Delaware
corporation (the "COMPANY"), and J.P. Morgan Securities Inc., Dain Rauscher
Wessels, a division of Dain Rauscher Incorporated, and A.G. Edwards & Sons, Inc.
(together the "INITIAL PURCHASERS").
This Agreement is made pursuant to the Purchase Agreement dated July 10,
1998, among the Company and the Initial Purchasers (the "PURCHASE AGREEMENT"),
which provides for the sale by the Company to the Initial Purchasers of
$100,000,000 principal amount of the Company's 9.50% Senior Subordinated Notes
due 2008 (the "SECURITIES"). The Securities are to be issued by the Company
pursuant to the provisions of an indenture dated as of July 10, 1998 (as
amended, supplemented or otherwise modified from time to time, the "INDENTURE")
between the Company and UMB Bank, N.A., as trustee (the "TRUSTEE").
In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company has agreed to provide to the Initial Purchasers and their
direct and indirect transferees the registration rights with respect to the
Securities 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.
"CLOSING DATE" shall mean the Closing Date as defined in the Purchase
Agreement.
"COMPANY" shall have the meaning set forth in the preamble and shall also
include the Company's successors.
"EXCHANGE DATE" shall have the meaning set forth in Section 2(a)(ii).
"EXCHANGE OFFER" shall mean the exchange offer by the Company of Exchange
Securities for all Securities that are Registrable Securities pursuant to
Section 2(a).
"EXCHANGE OFFER REGISTRATION" shall mean a registration under the 1933 Act
effected pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange offer
registration statement on an 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 by reference
therein.
"EXCHANGE SECURITIES" shall mean securities issued by the Company under the
Indenture and 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 July 15, 1998 and
(ii) the Exchange Securities will not provide for additional interest accruing
thereon following a failure to register such Exchange Securities under the 1933
Act and will not contain terms with respect to transfer restrictions) and to be
offered to Holders of Securities in exchange for Securities pursuant to the
Exchange Offer.
"HOLDERS" shall mean the Initial Purchasers, for so long as they own any
Registrable Securities, and their 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 "HOLDERS" shall include Participating Broker-Dealers.
"INDENTURE" shall have the meaning set forth in the preamble.
"INITIAL PURCHASERS" shall have the meaning set forth in the preamble.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the aggregate
principal amount of outstanding Registrable Securities; provided that, for
purposes of Section 6(b), whenever the consent or approval of Holders of a
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specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or any of its affiliates (as such
term is defined in Rule 405 under the 1933 Act) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage or amount.
"OFFER TERMINATION DATE" shall have the meaning set forth in
Section 2(a)(iv).
"PARTICIPATING BROKER-DEALER" shall have the meaning set forth in
Section 4(a) hereof.
"PERSON" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble.
"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 by reference therein.
"REGISTRABLE SECURITIES" shall mean the Securities; provided, however, that
the Securities shall cease to be Registrable Securities when (i) 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) such Securities have been sold pursuant to
Rule 144 (or any similar provision then in force, but not Rule 144A) under the
1933 Act, (iii) such Securities shall have ceased to be outstanding or (iv) such
Securities have been exchanged for Exchange Securities upon consummation of the
Exchange Offer.
"REGISTRATION EXPENSES" shall mean any and all expense incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange and 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, (iii) all expenses of any Person in preparing or assisting in
preparing, word processing, printing and distributing, at the request of the
Company, any Registration
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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 fees
and disbursements relating to the qualification of the Indenture under
applicable securities laws, (v) the reasonable fees and disbursements of the
Trustee and its counsel, (vi) the reasonable fees and disbursements of counsel
for the Company and for the Initial Purchasers or, in the case of a Shelf
Registration Statement, the reasonable fees and disbursements of one counsel for
the Holders incurred on or before the initial effectiveness of the Shelf
Registration Statement, which counsel shall either be counsel for the Initial
Purchasers or other counsel selected by the Majority Holders and satisfactory to
the Company ("COUNSEL FOR THE HOLDERS"), (vii) the fees and disbursements of the
independent public accountants of the Company, including the expenses of any
special audits or "cold comfort" letters required by or incident to such
performance and compliance, and (viii) the fees and expenses of listing the
Registrable Securities on any securities exchange or quotation system in
accordance with Section 3(o) hereof but excluding underwriting discounts, if
any, and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by the Holders.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company that covers any of the Exchange Securities or the 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 by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"SHELF REGISTRATION" shall mean a registration effected pursuant to
Section 2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration statement
of the Company pursuant to the provisions of Section 2(b) of this Agreement
which covers all of the Registrable Securities (except Registrable Securities
that the Holders have elected not to include in such Shelf Registration
Statement) or Securities that represent an unsold allotment for the original
offering thereof 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 by reference therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
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"TRUSTEE" shall have the meaning set forth in the preamble.
"UNDERWRITERS" shall have the meaning set forth in Section 3 hereof.
"UNDERWRITTEN OFFERING" shall mean a registration in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
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 Company shall use its best
efforts to cause to be filed on or prior to the date that is 60 days after
the Closing Date an Exchange Offer Registration Statement covering the
offer by the Company to the Holders to exchange all of the Registrable
Securities for Exchange Securities, to have such Registration Statement
declared effective by the SEC on or prior to the date that is 120 days
after the Closing Date and remain effective until the closing of the
Exchange Offer and to consummate the Exchange Offer on or prior to the date
that is 150 days after the Closing Date. For purposes hereof, "CONSUMMATE"
shall mean that the Exchange Offer Registration Statement shall have been
declared effective, subject to Section 2(b), the period of the Exchange
Offer provided in accordance with clause 2(a)(ii) below shall have expired
and all Registrable Securities validly tendered in connection with such
Exchange Offer shall have been exchanged for Exchange Securities. The
Company 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 will be accepted for exchange;
(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) (each such date being an "EXCHANGE DATE");
(iii) that any Registrable Security not tendered will remain
outstanding and continue to accrue interest, but will not retain any
rights under this Agreement, other than Securities that represent an
unsold allotment for the original offering thereof;
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(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 letters of
transmittal, to the institution and at the address specified in the
notice prior to the close of business on the last Exchange Date (the
"OFFER TERMINATION DATE"); and
(v) that Holders will be entitled to withdraw their election,
not later than the close of business on the Offer Termination Date, by
sending to the institution and at the address specified in the notice
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 Registrable Securities exchanged.
As soon as practicable after the Offer Termination Date, the Company shall:
(A) accept for exchange Registrable Securities or portions
thereof tendered and not validly withdrawn pursuant to the
Exchange Offer; and
(B) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so
accepted for exchange by the Company and issue, and cause the
Trustee to promptly authenticate and mail to each Holder, an
Exchange Security equal in aggregate principal amount to the
aggregate principal amount of the Registrable Securities
surrendered by such Holder.
The Company shall use its 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 that the Exchange Offer shall not violate applicable law or any
applicable interpretation of the Staff of the SEC and other customary conditions
for offers of that type relating to acts of Holders required for a valid tender
of the Securities.
(b) In the event that (i) the Company determines that the Exchange
Offer Registration provided for in Section 2(a) above is not
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available or may not be consummated as soon as practicable after the Offer
Termination Date because it would violate applicable law or the applicable
interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for
any other reason consummated within 150 days after the Closing Date or
(iii) in the opinion of counsel for the Initial Purchasers delivered in
writing to the Company not later than 20 business days after the Exchange
Offer is consummated a Registration Statement must be filed and a
Prospectus must be delivered by any of the Initial Purchasers in connection
with any offering or sale of Registrable Securities because such
Registrable Securities represent an unsold allotment for the original
offering thereof, the Company shall use its best efforts to cause to be
filed as soon as practicable after such determination, date or delivery of
such opinion of counsel is given to the Company, as the case may be, a
Shelf Registration Statement providing for the sale of such Registrable
Securities and to have such Shelf Registration Statement declared effective
by the SEC. In the event the Company 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 Company shall file and use its
best efforts to 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 at any
time be a combined Registration Statement with the Exchange Offer
Registration Statement or may be a separate Registration Statement) with
respect to offers and sales of Registrable Securities held by any of the
Initial Purchasers after completion of the Exchange Offer. If the Shelf
Registration Statement is filed pursuant to clause (i) of the second
preceding sentence, the Company agrees to use its best efforts to keep the
Shelf Registration Statement continuously effective until the earliest of
(i) two years after the Closing Date, (ii) the time when the Registrable
Securities registered thereunder can be sold by non-affiliates of the
Company pursuant to Rule 144(k), or (iii) such time as all of the
Registrable Securities covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement. If the Shelf
Registration Statement is filed only pursuant to clauses (ii) or (iii) of
the third preceding sentence, the Company agrees to use its best efforts to
keep the Shelf Registration Statement continuously effective until 180 days
from the effective date thereof 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. The
Company further agrees to supplement or amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable
to the registration form used by the Company for such Shelf Registration
Statement or by the 1933 Act or by any other rules and regulations
thereunder for shelf registration or if
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reasonably requested by a Holder with respect to information relating to
such Holder, and to use their best efforts to cause any such amendment to
become effective and such Shelf Registration Statement to become usable as
soon as practicable thereafter. The Company 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 Company shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a) or Section 2(b). Each Holder
shall pay all underwriting discounts, if any, and commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to a 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 be effective during the period of such interference until the
offering of Registrable Securities pursuant to such Registration Statement
may legally resume.
(e) Without duplication of the provisions set forth in the Indenture,
in the event that (i) the Exchange Offer Registration Statement relating to
the Exchange Offer is not filed with the Commission on or prior to the date
that is 60 days after the Closing Date, (ii) the Exchange Offer
Registration Statement is not declared effective on or prior to the date
that is 120 days after the Closing Date, or (iii) the Exchange Offer is not
consummated or a Shelf Registration Statement with respect to resale of the
Securities is not declared effective on or prior to the date that is 150
days after the Closing Date (each such event referred to in clauses (i)
through (iii), a "Registration Default"), then the Company will pay
additional interest (in addition to the interest otherwise due on the
Securities) to each Holder of Securities during the first 90-day period
immediately following the occurrence of each such Registration Default in
an amount equal to 0.25% per annum. The amount of interest will increase by
an additional 0.25% per annum for each subsequent 90-day period until such
Registration Default is cured, up to a maximum amount of additional
interest of 1.00% per annum for any and all such Registration Defaults.
Such additional interest will cease accruing on such Securities
8
with respect to any Registration Default when such Registration Default has
been cured.
(f) Without limiting the remedies available to the Initial Purchasers
and the Holders, the Company acknowledges that any failure by the Company
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 damage for such injuries precisely and that, in the
event of any such failure, any Initial Purchaser or Holder may obtain such
relief as may be required to specifically enforce the Company's obligations
under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures.
In connection with the obligations of the Company with respect to the
Registration Statements pursuant to Section 2(a) and Section 2(b) hereof and
subject to the terms and conditions thereof, the Company shall reasonably
promptly:
(a) use its best efforts to prepare and file with the SEC a
Registration Statement on the appropriate form under the 1933 Act, which
Registration Statement shall (x) be on a form selected by the Company, (y)
in the case of a Shelf Registration, be on a form available for the sale of
the Registrable Securities by the selling Holders thereof and (z) comply as
to form in all material respects with the requirements of the applicable
form and include all financial statements required by the SEC to be filed
therewith, and use its best efforts to cause such Registration Statement to
become effective and remain effective in accordance with Section 2 hereof;
(b) use its best efforts to 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 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; and use its best efforts 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;
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(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Holders and for the Initial
Purchasers (or, if applicable, separate 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 or Underwriter may reasonably request, in
order to facilitate the public sale or other disposition of the Registrable
Securities; and the Company 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 Underwriters
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 best efforts (i) 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 and timely request in writing by
the time the applicable Registration Statement is declared effective by the
SEC and (ii) 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 Company shall not be required to (A)
register or qualify as a foreign corporation or as a dealer in securities
in any jurisdiction where it would not otherwise be required to register or
qualify but for this Section, (B) file any general consent to service of
process or (C) 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 for the Initial
Purchasers and, if requested by such Persons, 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
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or the initiation of any proceedings for that purpose, (iv) if, between the
effective date of a Registration Statement and the closing of any sale of
Registrable Securities covered thereby, the representations and warranties
of the Company contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to the offering
cease to be true and correct in all material respects or if the Company
receives any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or
the initiation of any proceeding for such purpose, (v) 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 which requires the
making of any changes in such Registration Statement or Prospectus in order
to make the statements therein not misleading and (vi) of any determination
by the Company that a post-effective amendment to a Registration Statement
would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment and provide prompt notice to each Holder of the
withdrawal of any such order;
(g) in the case of a Shelf Registration, upon request furnish to each
Holder of Registrable Securities, without charge, at least 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 (unless required by applicable
securities laws) 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 two business days prior to the closing of any sale of Registrable
Securities;
(i) in th e case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(e)(ii) through (vi) hereof, use its best
efforts to prepare 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,
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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
the light of the circumstances under which they were made, not misleading.
The Company 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 Company 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, or any document which is to be
incorporated by reference into a Registration Statement or Prospectus after
the initial filing of a Registration Statement, provide copies of such
document to the Initial Purchasers and their counsel (and, in the case of a
Shelf Registration Statement, counsel for the Holders) and make such of the
representatives of the Company as shall be reasonably requested by the
Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, counsel for the Holders) reasonably available for
discussion of such document, and 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 or any document
which is to be incorporated by reference into a Registration Statement or a
Prospectus, of which the Initial Purchasers and their counsel (and, in the
case of a Shelf Registration Statement, counsel for the Holders) shall not
have previously been advised and furnished a copy or to which the Initial
Purchasers or their counsel (and, in the case of a Shelf Registration
Statement, counsel for the Holders) 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, and
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 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;
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(m) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Registrable
Securities, any Underwriter participating in any disposition pursuant to
such Shelf Registration Statement, and counsel for the Holders, at
reasonable times and in a reasonable manner, all financial and other
records, pertinent documents and properties of the Company, and cause the
respective officers, directors and employees of the Company to supply all
information reasonably requested by any such representative, Underwriter,
attorney or accountant in connection with a Shelf Registration Statement,
in each case that would customarily be reviewed or examined in connection
with "DUE DILIGENCE" review of the Company;
(n) 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 the Company has received
notification of the matters to be incorporated in such filing;
(o) cause all Registrable Securities covered by a Registration
Statement (i) to be listed on each securities exchange or quotation system
on which similar securities issued by the Company are then listed, if so
requested by the Majority Holders and (ii) if not theretofore rated, to be
rated with the appropriate rating agencies, if so requested by the Majority
Holders; and
(p) in the case of an Underwritten Offering pursuant to a Shelf
Registration, enter into such customary agreements and take all such other
customary actions in connection therewith (including, those reasonably
requested by counsel for the Holders) in order to expedite or facilitate
the disposition of such Registrable Securities 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 Company 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 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 Company (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 Underwriter of Registrable Securities, covering the matters
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customarily covered in opinions requested in underwritten offerings, (iii)
obtain "cold comfort" letters from the independent certified public
accountants of the Company (and, if necessary, any other certified public
accountant of any subsidiary of the Company, or 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 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 counsel for the Holders to evidence the continued validity of the
representations and warranties of the Company made pursuant to clause (i)
above and to evidence compliance with any customary conditions in an
underwriting agreement. In the case of any Underwritten Offering, the
Company shall provide written notice to the Holders of all Registrable
Securities of such Underwritten Offering at least 30 days prior to the
filing of a prospectus supplement for such Underwritten Offering. Such
notice shall (x) offer each such Holder the right to participate in such
Underwritten Offering, (y) specify a date, which shall be no earlier than
10 days following the date of such notice, by which such Holder must inform
the Company of its intent to participate in such Underwritten Offering and
(z) include the instructions such Holder must follow in order to
participate in such Underwritten Offering.
In the case of a Shelf Registration Statement, the Company may require each
Holder of Registrable Securities to promptly furnish to the Company such
information regarding the Holders and the proposed distribution by such Holder
of such Registration Securities as the Company may from time to time reasonably
request in writing and if any such Holder shall fail or refuse to furnish the
Company such information, the Company may exclude the securities of such Holder
from the Registration Statement, and any such Holder shall not be entitled to
additional interest payments as provided for in Section 2(e) hereof.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 3(e)(ii) through (vi) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to a
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof, and, if
so directed by the Company, such Holder will deliver to the Company (at its
expense) or destroy all copies in its possession, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Registration Securities current at the time of receipt of such notice.
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If the Company shall give any such notice to suspend the disposition of
Registrable Securities pursuant to a Registration Statement, the Company 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.
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 Holders of a majority in
principal amount of the Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Company understands that the Staff of the SEC has taken the
position that any broker-dealer that receives Exchange Securities for its
own account in the Exchange Offer in exchange for Securities that were
acquired by such broker-dealer 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 in connection with any
resale of such Exchange Securities.
The Company 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 Company agrees 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 representative of the Participating
Broker-Dealers pursuant to clause 4(b)(ii) below in order to expedite or
facilitate the disposition of any Exchange Securities by Participating
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Broker-Dealers consistent with the positions of the Staff recited in
Section 4(a) above; provided that:
(i) the Company 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 Offer Termination Date (as such period
may be extended pursuant to the penultimate paragraph of Section 3)
and Participating Broker-Dealers shall not be authorized by the
Company to deliver and shall not deliver such Prospectus after such
period in connection with the resales contemplated by this Section;
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 regulations thereunder,
will be in conformity with the reasonable request to the Company by
the Initial Purchasers or with the reasonable request in writing to
the Company by the broker-dealers who certify to the Initial
Purchasers and the Company 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 Company
shall be obligated (x) to deal only with a single representative of
the Participating Broker-Dealers, which shall be J.P. Morgan
Securities Inc. unless it elects not to act as such representative, in
which case, the representative shall be selected by a majority of the
Participating Broker-Dealers, (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" letter with respect to the Prospectus in the form existing on
the Offer Termination Date.
(c) The Initial Purchasers shall have no liability to the Company or
any Holder with respect to any request that they make pursuant to
Section 4(b) above.
5. Indemnification and Contribution.
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(a) The Company agrees to indemnify and hold harmless each Initial
Purchaser, 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 any
and all losses, claims, damages and liabilities (including without
limitation the reasonable legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted) and
arising out of or based upon 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 therein by reference), or arising out of or based upon any
omissions or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, or arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto, including all documents incorporated therein by
reference), or arising out of or based upon any omission or alleged
omission to state therein a material fact necessary to make the statements
therein in the light of the circumstances under which they were made not
misleading, except insofar as such losses, claims, damages or liabilities
arise out of or are based upon any untrue statement or omission or alleged
untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information relating
to such Initial Purchaser or Holder furnished in writing to the Company by
or on behalf of such Initial Purchaser or Holder expressly for use in
connection therewith; provided that the foregoing indemnity with respect to
any preliminary Prospectus shall not inure to the benefit of any Initial
Purchaser (or to the benefit of any Person controlling such Initial
Purchaser) from whom the Person asserting any such losses, claims, damages
or liabilities purchased Exchange Securities if such untrue statement or
omission or alleged untrue statement or omission made in the preliminary
Prospectus is eliminated or remedied in the final Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto to such Initial Purchaser prior to the confirmation of
the sale of such Exchange Securities to such person by such Initial
Purchaser) and a copy of the final Prospectus (as so amended or
supplemented) shall not have been furnished to such Person in connection
with the sale of such Exchange Securities to such Person to the extent the
claims asserted by such Person do not include allegations of other untrue
statements or omissions made in the final Prospectus. In
17
connection with any Underwritten Offering permitted by Section 3 hereof,
the Company 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
such Persons within the meaning of either Section 15 of the 1933 Act or
Section 20 of 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; provided that such Underwriters provide
indemnification substantially to the same extent as is provided by the
Initial Purchasers and each Holder pursuant to Section 5(b) below and
provides a contribution substantially to the same extent as the Initial
Purchasers and each Holder pursuant to Section 5(d) and (e).
(b) Each Initial Purchaser and each Holder agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors and
officers, and any Person who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to the Initial Purchasers and
the Holders, but only with respect to information relating to such Initial
Purchaser or such Holder furnished in writing by or on behalf of such
Initial Purchaser or such Holder expressly for use in any Registration
Statement (or any amendment thereto) or any prospectus (or any amendment or
supplement thereto).
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any Person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such Person (the "INDEMNIFIED
PERSON") shall promptly notify the Person against whom such indemnity may
be sought (the "INDEMNIFYING PERSON") in writing, and the Indemnifying
Person, upon request of the Indemnified Person, shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may reasonably
designate in such proceeding and shall pay the reasonable fees and expenses
of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person 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 Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary, (ii) the Indemnifying
Person has failed within a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Person or (iii) the named parties in any
such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of
18
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel and counsel
for the Indemnifying Person) for all Indemnified Persons and their
designees. Any such separate firm for the Initial Purchasers and all
Persons, if any, who control any of the Initial Purchasers within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall be designated in writing by J.P. Morgan Securities Inc., any such
separate firm for the Holders and all Persons, if any, who control Holders
within the meaning of either such Section shall be designated in writing by
the Majority Holders, and any such separate firm for the Company, its
directors, its officers and each Person, if any, who controls the Company
within the meaning of either such Section shall be designated in writing by
the Company. The Indemnifying Person 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 Person agrees to indemnify any Indemnified Person from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the
Indemnified Person for reasonable fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of
any proceeding effected without its written consent if (i) such settlement
is entered into more than 120 days after receipt by such Indemnifying
Person of the aforesaid request and (ii) such Indemnifying Person shall not
have reimbursed the Indemnified Person in accordance with such request
prior to the date of such settlement. No Indemnifying Person shall, without
the prior written consent of the Indemnified Person, effect any settlement
of any pending or threatened proceeding in respect of which any Indemnified
Person is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on
claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section is
unavailable to an Indemnified Person under paragraphs (a) or (b) hereof in
respect of any losses, claims, damages or liabilities referred to therein,
then an Indemnifying Person, in lieu of indemnifying such Indemnified
Person, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities in such
19
proportion as is appropriate to reflect the relative fault of the Company
on the one hand and the Initial Purchasers or Holders 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 Company on the one hand and the
Initial Purchasers or Holders on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one
hand or by the Initial Purchasers or the Holders on the other hand and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(e) The Company, the Initial Purchasers and each Holder agree that it
would not be just or equitable if contribution pursuant to this Section
were determined by pro rata allocation (even if the Initial Purchasers and
the Holders were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable
considerations referred to in paragraph 5(d) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages
and liabilities referred to in paragraph 5(d) above shall be deemed to
include, subject to the limitations set forth above, any reasonable legal
or other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section, no Initial Purchaser or Holder shall be
required to indemnify or contribute any amount in excess of the amount by
which the total price at which Registrable Securities were sold by such
Initial Purchaser or Holder exceeds the amount of any damages that such
Initial Purchaser or 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
Holders' obligations to contribute pursuant to this Section are several in
proportion to the aggregate principal amount of Registrable Securities sold
by them pursuant to such Registration Statement.
(f) Any losses, claims, damages or liabilities for which an
Indemnified Person is entitled to indemnification or contribution under
this Section shall be paid by the Indemnifying Person to the Indemnified
Person as such losses, claims, damages or liabilities are incurred
reasonably promptly after receipt by the Indemnifying Person of a request
20
therefor by the Indemnified Person. The indemnity and contribution
agreements contained in this Section and the representations and warranties
of the Company set forth in this Agreement shall remain operative and in
full force and effect, regardless of (i) any investigation made by or on
behalf of any Initial Purchaser, any Holder or any Person controlling any
Initial Purchaser or any Holder, the Company's directors or officers or any
Person controlling the Company, (ii) acceptance of any Exchange Securities,
(iii) any termination of this Agreement and (iv) any sale of Registrable
Securities pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Company has 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 Company'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 Company has 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 Company by means of a notice given in accordance with the
provisions of this Section, which address initially is, with respect to the
Initial Purchasers, the address set forth in the Purchase Agreement; and
(ii) if to the Company, initially at the Company'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.
21
All such notices and communications shall be deemed to have been duly given
at the time delivered, if personally delivered; five business days after being
deposited in the mail, postage pre-paid, 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 or assumption, 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. The Initial Purchasers shall have no liability or
obligation to the Company, and the Company shall have no liability or
obligation to the Initial Purchasers, with respect to any failure by a
Holder to comply with, or any breach by any Holder of, the obligations of
such Holder under this Agreement.
(e) Purchases and Sales of Securities. The Company shall not, and
shall cause its affiliates (as defined in Rule 405 under the 1933 Act) not
to, purchase and then resell or otherwise transfer any Securities (other
than Exchange Securities) other than to the Company or its affiliates.
(f) Third Party Beneficiary. Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Company, on the
one hand, and the Initial Purchasers, on the other hand, and subject to the
terms hereof 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 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.
22
(i) Governing Law. This Agreement shall be governed by laws of the
State of New York.
(j) Severability. In the event that one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable the validity, legality and enforceability
of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
REPUBLIC GROUP INCORPORATED
By /s/ Doyle R. Ramsey
-------------------------
Name: Doyle R. Ramsey
Title: Vice President Finance
J.P. MORGAN SECURITIES INC.
DAIN RAUSCHER WESSELS,
a division of Dain Rauscher Incorporated
A.G. EDWARDS & SONS, INC.
By: J.P. Morgan Securities Inc.
By /s/ John Gilbert
--------------------------------
Name: John Gilbert
Title: Managing Director
24
Dates Referenced Herein and Documents Incorporated by Reference
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