exv4w1






EXHIBIT 4.1




EXECUTION COPY




Calgon Carbon Corporation



5.00% Convertible Senior Notes due 2036



Registration Rights Agreement



August 18, 2006




J.P. Morgan Securities Inc.

277 Park Avenue

New York, New York 10172



Ladies and Gentlemen:




     Calgon Carbon Corporation, a Delaware corporation (the “Company”), proposes to issue and sell
to J.P. Morgan Securities Inc. (the “Initial Purchaser”), upon the terms and subject to the
conditions set forth in a purchase agreement, dated August 14, 2006 (the “Purchase Agreement”),
among the Company, the Guarantors (as defined below) and the Initial Purchaser, $65,000,000
aggregate principal amount of its 5.00% Convertible Senior Notes due 2036 (the “Firm Notes”) and,
at the election of the Initial Purchaser, an additional $10,000,000 aggregate principal amount of
the Company’s 5.00% Convertible Senior Notes due 2036 (the “Additional Notes” and, together with
the Firm Notes, the “Notes”) to be guaranteed (the “Guarantees”) by the subsidiaries of the Company
listed on the signature page hereto (collectively, the “Guarantors”). The Notes will be convertible
into fully paid, non-assessable shares of common stock, par value $0.01 per share, of the Company
on the terms, and subject to the conditions, set forth in the Indenture (as defined below).
Capitalized terms used but not defined herein shall have the meanings given to such terms in the
Purchase Agreement.



     As an inducement to the Initial Purchaser to enter into the Purchase Agreement, and in
satisfaction of a condition to the obligations of the Initial Purchaser thereunder, the Company and
the Guarantors agree with the Initial Purchaser, for the benefit of the holders (including the
Initial Purchaser) of the Notes and the Shares (as defined below) (collectively, the “Holders”), as
follows:



     1. Certain Definitions.



     For purposes of this Registration Rights Agreement the following terms
shall have the following meanings:




     (a) “Additional Guarantor” means any subsidiary of the Company that executes a Subsidiary
Guarantee under the Indenture after the date of this
Agreement.




     (b) “Additional Interest” has the meaning assigned thereto in Section 2(d).




     (c) “Additional Interest Payment Date” has the meaning assigned thereto in Section 2(d).




     (d) “Additional Notes” has the meaning specified in the first paragraph of this Agreement.









 



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     (e) “Agreement” means this Registration Rights Agreement, as the same may be amended from time
to time pursuant to the terms hereof.




     (f) “Closing Date” means the date on which any Notes are initially issued.




     (g) “Commission” means the Securities and Exchange Commission, or any other federal agency at
the time administering the Exchange Act or the Securities Act, whichever is the relevant statute
for the particular
purpose.




     (h) “Company” has the meaning specified in the first paragraph of this Agreement.




     (i) “Deferral Notice” has the meaning assigned thereto in Section 3(b).




     (j) “Deferral Period” has the meaning assigned thereto in Section 3(b).




     (k) “Effective Period” has the meaning assigned thereto in Section 2(a).




     (l) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.




     (m) “Firm Notes” has the meaning specified in the first paragraph of this Agreement.




     (n) “Free Writing Prospectus” means each free writing prospectus (as defined in Rule 405 under
the Securities Act) prepared by or on behalf of the Company or used or referred to by the Company
in connection with the sale of the Securities.




     (o)
“Guarantees” has the meaning specified in the first paragraph of this Agreement.




     (p) “Guarantors” has the meaning set forth in the preamble and also includes any Guarantor’s
successors and any Additional Guarantors.




     (q) “Holder” means each holder, from time to time, of Registrable Securities (including the
Initial Purchaser).




     (r) “Indenture” means the Indenture dated as of the date hereof among the Company, the
Guarantors and The Bank of New York, as Trustee, pursuant to which the Notes and the Guarantees are
being issued.




     (s) “Initial Purchaser” has the meaning specified in the first paragraph of this Agreement.




     (t) “Issuer Information” has the meaning set forth in Section 6(a)
hereof.




     (u) “Material Event” has the meaning assigned thereto in Section
3(a)(iv).




     (v) “Majority Holders” shall mean, on any date, holders of the
majority of the Shares constituting Registrable Securities; for the purposes of this
definition, Holders of Notes constituting Registrable Securities shall be deemed to be the Holders
of the number of Shares into which such Notes are or would be convertible as of such date.









 



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     (w) “NASD” shall mean the National Association of Securities Dealers, Inc.




     (x) “NASD Rules” shall mean the Conduct Rules and the By-Laws of the NASD.




     (y) “Notes” has the meaning specified in the first paragraph of this Agreement.




     (z) “Notice and Questionnaire” means a written notice delivered to the Company containing
substantially the information called for by the Form of Selling Securityholder Notice and
Questionnaire attached as Annex A to the Offering Memorandum.




     (aa) “Notice Holder” means, on any date, any Holder that has delivered a Notice and
Questionnaire to the Company prior to such date.




     (bb) “Offering Memorandum” means the Offering Memorandum dated August 14, 2006 relating to
the offer and sale of the Securities.




     (cc) “Person” means a corporation, association, partnership, organization, business,
individual, government or political subdivision




     thereof or governmental agency.




     (dd) “Prospectus” means the prospectus included in any Shelf Registration Statement, including
any preliminary prospectus, and any such prospectus as amended or supplemented by any amendment or
prospectus supplement, including post-effective amendments, and all materials incorporated by
reference or explicitly deemed to be incorporated by
reference in such Prospectus.




     (ee) “Purchase Agreement” has the meaning specified in the first
paragraph of this Agreement.




     (ff) “Registrable Securities” means




	 	(i)	 	any Notes and the Subsidiary Guarantees until the earliest of (i) their effective
registration under the Securities Act and the resale of all such Notes and Subsidiary Guarantees in
accordance with the Shelf Registration Statement, (ii) the date on which such Notes and Subsidiary
Guarantees are (A) sold pursuant to Rule 144 under circumstances in which any legend borne by such
Notes and Subsidiary Guarantees relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed or (B) freely transferable without restriction under Rule
144(k) or (iii) the date on which such Notes have been converted (and the related Subsidiary
Guarantees have been terminated) or otherwise cease to be outstanding;
	 
	 	(ii)	 	any Shares issuable upon conversion of any Notes constituting Registrable Securities,
until the earliest of (i) their effective registration under the Securities Act and the resale of
all such Shares in accordance with the Shelf Registration Statement, (ii) the date on which such
Shares are (A) sold pursuant to Rule 144 under circumstances in which any legend borne by such
Shares relating to restrictions on transferability thereof, under the Securities Act or otherwise,
is removed or (B) freely transferable without restriction under Rule 144(k) or (iii) the date on
which such Shares cease to be outstanding.










 



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     (gg) “Registration Default” has the meaning assigned thereto in Section 2(d).




     (hh) “Registration Expenses” has the meaning assigned thereto in Section 5.




     (ii) “Rule 144,” “Rule 405” and “Rule 415” mean, in each case, such rule as promulgated under
the Securities Act.




     (jj) “Securities” means, collectively, the Notes and the Shares.




     (kk) “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.




     (ll) “Shares” means the shares of common stock of the Company, par value $0.01 per share, into
which the Notes are convertible or that have been issued upon a conversion from Notes into common
stock of the Company.




     (mm) “Shelf Registration Statement” means the shelf registration statement referred to in
Section 2(a), as amended or supplemented by any amendment or supplement, including post-effective
amendments, and all materials incorporated by reference or explicitly deemed to be incorporated by
reference in such Shelf Registration Statement.




     (nn) “Special Counsel” shall have the meaning assigned thereto in
Section 5.




     (oo) “Subsidiary Guarantee” means, individually, any Guarantee of payment of the Securities by
a Subsidiary Guarantor pursuant to the terms of the Indenture and any supplemental indenture
thereto and, collectively, all such Guarantees. Each such Subsidiary Guarantee will be in the form
prescribed by the Indenture.




     (pp) “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, or any successor
thereto, and the rules, regulations and forms promulgated thereunder.




     (qq) “Trustee” shall have the meaning assigned such term in the Indenture.



     Unless the context otherwise requires, any reference herein to a “Section” or “clause” refers
to a Section or clause, as the case may be, of this Agreement, and the words “herein,” “hereof” and
“hereunder” and other words of similar import refer to this Agreement as a whole and not to any
particular Section or other subdivision. Unless the context otherwise requires, any reference to a
statute, rule or regulation refers to the same (including any successor statute, rule or regulation
thereto) as it may be amended from time to time.



     2. Registration Under the Securities Act.




     (a) The Company and the Guarantors agree to file under the Securities Act as promptly as
practicable but in any event within 90 days after the Closing Date a shelf registration statement
providing for the registration of, and the sale on a continuous or delayed basis by the Holders of,
all of the Registrable Securities, pursuant to Rule 415 or any similar rule that may be adopted by
the Commission. The Company and the Guarantors agree to use their reasonable efforts to cause the
Shelf Registration Statement to become effective within 240 days after the Closing Date and to keep
such Shelf Registration Statement continuously effective until the earlier of (i) the second
anniversary of the Closing Date or (ii) such time as there are no longer any Registrable Securities
outstanding (the “Effective Period”). None of the Company’s securityholders or the Guarantors’
securityholders (other









 



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than Holders of Registrable Securities) shall have the right to include any of the Company’s
securities or the Guarantors’ securities in the Shelf Registration Statement.




     (b) The Company and the Guarantors further agree that they shall cause the Shelf Registration
Statement and the related Prospectus and any amendment or supplement thereto, as of the effective
date of the Shelf Registration Statement or such amendment or supplement, (i) to comply in all
material respects with the applicable requirements of the Securities Act; and (ii) not to contain
any untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein (in the case of the Prospectus, in the
light of the circumstances under which they were made) not misleading, and the Company and the
Guarantors agree to furnish to the Holders of the Registrable Securities copies of any supplement
or amendment prior to its being used or promptly following its filing with the Commission;
provided, however, that the Company shall have no obligation to deliver to Holders of Registrable
Securities copies of any amendment consisting exclusively of an Exchange Act report or other
Exchange Act filing otherwise publicly available on the Company’s website. If the Shelf
Registration Statement, as amended or supplemented from time to time, ceases to be effective for
any reason at any time during the Effective Period (other than because all Registrable Securities
registered thereunder shall have been sold pursuant thereto or shall have otherwise ceased to be
Registrable Securities), the Company and the Guarantors shall use their reasonable best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness
thereof.




     (c) Each Holder of Registrable Securities agrees that if such Holder wishes to sell
Registrable Securities pursuant to the Shelf Registration Statement and related Prospectus, it will
do so only in accordance with this Section 2(c) and Section 3(b). From and after the date the Shelf
Registration Statement is declared or becomes effective, the Company and the Guarantors shall, as
promptly as is practicable after the date a Notice and Questionnaire is delivered, and in any event
within fifteen (15) days after the date of receipt of such Notice and Questionnaire, or if the use
of the Prospectus has been suspended by the Company under Section 3(b) hereof at the time of
receipt of the Notice and Questionnaire, fifteen (15) days after the expiration of the period
during which the use of the Prospectus is suspended:




     (i) if required by applicable law, file with the Commission a post-effective amendment to the
Shelf Registration Statement or prepare and, if required by applicable law, file a supplement to
the related Prospectus or a supplement or amendment to any document incorporated therein by
reference or file any other required document so that the Holder delivering such Notice and
Questionnaire is named as a selling security holder in the Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder to deliver such Prospectus to
purchasers of the Registrable Securities in accordance with applicable law and, if the Company and
the Guarantors shall file a post-effective amendment to the Shelf Registration Statement, use their
reasonable efforts to cause such post-effective amendment to be declared or to otherwise become
effective under the Securities Act as promptly as is practicable. Notwithstanding the foregoing,
the Company and the Guarantors shall not be required to file more than one post-effective amendment
to the Shelf Registration Statement or supplement to the related Prospectus during any thirty (30)
day period;




     (ii) provide such Holder copies of any documents filed pursuant
to Section 2(c)(i); and




     (iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective amendment
filed pursuant to Section 2(c)(i);









 



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provided that if such Notice and Questionnaire is delivered during a Deferral Period, the
Company shall so inform the Holder delivering such Notice and Questionnaire and shall take the
actions set forth in clauses (i), (ii) and (iii) above upon expiration of the Deferral Period in
accordance with Section 3(b). Notwithstanding anything contained herein to the contrary, the
Company and the Guarantors shall be under no obligation to name any Holder that is not a Notice
Holder as a selling securityholder in any Shelf Registration Statement or related Prospectus;
provided, however, that any Holder that becomes a Notice Holder pursuant to the provisions of this
Section 2(c) (whether or not such Holder was a Notice Holder at the time the Shelf Registration
Statement was declared or otherwise became effective) shall be named as a selling securityholder in
the Shelf Registration Statement or related Prospectus in accordance with the requirements of this
Section 2(c).



     (d) If any of the following events (any such event a “Registration Default”) shall occur, then
additional interest (the “Additional Interest”) shall become payable jointly and severally by the
Company and the Guarantors to Holders in respect of the Notes as follows:




     (i) if the Shelf Registration Statement is not filed with the Commission within 90 days
following the Closing Date, then commencing on the 91st day after the Closing Date, Additional
Interest shall accrue on the principal amount of the outstanding Notes that are Registrable
Securities at a rate of 0.25% per annum for the first 90 days following such 91st day and at a rate
of 0.50% per annum
thereafter; or




     (ii) if the Shelf Registration Statement is not declared effective and does not otherwise
become effective within 240 days following the Closing Date, then commencing on the 241st day after
the Closing Date, Additional Interest shall accrue on the principal amount of the outstanding Notes
that are Registrable Securities at a rate of 0.25% per annum for the first 90 days following such
241st day and at a rate of 0.50% per annum thereafter; or




     (iii) if the Company or the Guarantors have failed to perform their obligations set forth in
Section 2(c) hereof within the time periods required therein, then commencing on the first day
after the date by which the Company and the Guarantors were required to perform such obligations,
Additional Interest shall accrue on the principal amount of the outstanding Notes that are
Registrable Securities at a rate of 0.25% per annum for the first 90 days and at a rate of 0.50%
per annum thereafter;




     (iv) if the Shelf Registration Statement has been declared effective or has otherwise become
effective but such Shelf Registration Statement ceases to be effective at any time during the
Effective Period (other than pursuant to Section 3(b) hereof), then commencing on the day such
Shelf Registration Statement ceases to be effective, Additional Interest shall accrue on the
principal amount of the outstanding Notes that are Registrable Securities at a rate of 0.25% per
annum for the first 90 days following such date on which the Shelf Registration Statement ceases to
be effective and at a rate of 0.50% per annum thereafter; or




     (v) if the aggregate duration of Deferral Periods in any period exceeds the number of days
permitted in respect of such period pursuant to Section 3(b) hereof, then commencing on the day the
aggregate duration of Deferral Periods in any period exceeds the number of days permitted in
respect of such period (and again on the first day of any subsequent Deferral Period during such
period), Additional Interest shall accrue on the principal amount of the outstanding Notes that are
Registrable Securities at a rate of 0.25% per annum for the first 90 days and at a rate of 0.50%
per annum thereafter;









 



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provided, however, that the Additional Interest rate on the Notes shall not exceed in the
aggregate 0.50% per annum and shall not be payable under more than one clause above for any given
period of time, except that if Additional Interest would be payable under more than one clause
above, but at a rate of 0.25% per annum under one clause and at a rate of 0.50% per annum under the
other, then the Additional Interest rate shall be the higher rate of 0.50% per annum; provided
further, however, that (1) upon the filing of the Shelf Registration Statement (in the case of
clause (i) above), (2) upon the effectiveness of the Shelf Registration Statement (in the case of
clause (ii) above), (3) upon the performance by the Company and the Guarantors of their obligations
set forth in Section 2(c) hereof within the time periods required therein (in the case of clause
(iii) above), (4) upon the effectiveness of the Shelf Registration Statement which had ceased to
remain effective (in the case of clause (iv) above), (5) upon the termination of the Deferral
Period that caused the limit on the aggregate duration of Deferral Periods in a period set forth in
Section 3(b) to be exceeded (in the case of clause (v) above) or (6) upon the termination of
certain transfer restrictions on the Securities as a result of the application of Rule 144(k) or
any successor provision, Additional Interest on the Notes as a result of such clause, as the case
may be, shall cease to accrue.




     Additional Interest on the Notes, if any, will be payable in cash on February 15 and August 15
of each year (the “Additional Interest Payment Date”) to holders of record of outstanding Notes
that are Registrable Securities on each preceding February 1 and August 1; provided that any
Additional Interest accrued with respect to any Notes or portion thereof called for redemption on a
redemption date or converted into Shares on a conversion date prior to the Registration Default
shall, in any such event, be paid instead to the Holder who submitted such Notes or portion thereof
for redemption or conversion on the applicable redemption date or conversion date, as the case may
be, on such date (or promptly following the conversion date, in the case of conversion). Following
the cure of all Registration Defaults requiring the payment of Additional Interest to the Holders
of Notes that are Registrable Securities pursuant to this Section, the accrual of Additional
Interest will cease (without in any way limiting the effect of any subsequent Registration Default
requiring the payment of
Additional Interest).




     The Company shall notify the Trustee immediately upon the happening of each and every
Registration Default. The Trustee shall be entitled, on behalf of Holders of Securities, to seek
any available remedy for the enforcement of this Agreement, including for the payment of any
Additional Interest. Notwithstanding the foregoing, the parties agree that the sole monetary
damages payable for a violation of the terms of this Agreement with respect to which additional
monetary amounts are expressly provided shall be as set forth in this Section 2(d). Nothing shall
preclude a Notice Holder or Holder of Registrable Securities from pursuing or obtaining specific
performance or other equitable relief with respect to this Agreement.




     (e) A Shelf Registration Statement pursuant to this Section 2 will not be deemed to have
become effective unless it has been declared effective by the SEC or is automatically effective
upon filing with the SEC as provided by Rule 462 under the Securities Act.



     3. Registration Procedures.



     The following provisions shall apply to the Shelf Registration Statement filed pursuant to
Section 2:




(a) The Company and the Guarantors shall:




     (i) prepare and file with the Commission a registration statement with respect to the shelf
registration on any form which may be utilized by the Company and the Guarantors and which shall
permit the disposition of the Registrable Securities in accordance









 



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with the intended method or methods thereof, as specified in writing by the Holders of the
Registrable Securities, and use their reasonable efforts to cause such registration statement to
become effective in accordance with Section 2(a) above;




     (ii) before filing any Shelf Registration Statement or Prospectus or any amendments or
supplements thereto with the Commission, furnish to the Initial Purchaser copies of all such
documents proposed to be filed and use reasonable efforts to reflect in each such document when so
filed with the Commission such comments as the Initial Purchaser reasonably shall propose within
three (3) Business Days of the delivery of such copies to the Initial Purchaser;




     (iii) use their reasonable efforts to prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement and file with the Commission any
other required document as may be necessary to keep such Shelf Registration Statement
continuously effective until the expiration of the Effective Period; cause the related Prospectus
to be supplemented by any required prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply
with the provisions of the Securities Act applicable to it with respect to the disposition of all
Securities covered by such Shelf Registration Statement during the Effective Period in accordance
with the intended methods of disposition by the sellers thereof set forth in such Shelf
Registration Statement as so amended or such Prospectus as so supplemented;




     (iv) promptly notify the Notice Holders of Registrable Securities (A) when such Shelf
Registration Statement or the Prospectus included therein or any amendment or supplement to the
Prospectus or post-effective amendment has been filed with the Commission, and, with respect to
such Shelf Registration Statement or any post-effective amendment, when the same has become
effective, (B) of any request, following the effectiveness of the Shelf Registration Statement, by
the Commission or any other Federal or state governmental authority for amendments or supplements
to the Shelf Registration Statement or related Prospectus or for additional information, (C) of the
issuance by the Commission of any stop order suspending the effectiveness of such Shelf
Registration Statement or the initiation or written threat of any proceedings for that purpose,
including the receipt by the Company of any notice of objection of the Commission to the use of a
Shelf Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2)
under the Securities Act, (D) of the receipt by the Company or any Guarantor of any notification
with respect to the suspension of the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or written threat of any proceeding for such purpose, (E) of the
occurrence of (but not the nature of or details concerning) any event or the existence of any fact
(a “Material Event”) as a result of which any Shelf Registration Statement shall contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or any Prospectus shall contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading (provided, however, that no notice by the Company shall be required pursuant
to this clause (E) in the event that the Company either promptly files a prospectus supplement to
update the Prospectus or a Form 8-K or other appropriate Exchange Act report that is incorporated
by reference into the Shelf Registration Statement, which, in either case, contains the requisite
information with respect to such Material Event that results in such Shelf Registration Statement
no longer containing any untrue statement of material fact or omitting to state a material fact
necessary to make the statements contained therein not misleading), (F) of the determination by the
Company that a post-effective amendment to the Shelf Registration Statement will be filed with the
Commission,









 



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which notice may, at the discretion of the Company (or as required pursuant to Section 3(b)),
state that it constitutes a Deferral Notice, in which event the provisions of Section 3(b) shall
apply or (G) at any time when a Prospectus is required to be delivered under the Securities Act,
that the Shelf Registration Statement, Prospectus, Prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission
thereunder;




     (v) prior to any public offering of the Registrable Securities pursuant to the Shelf
Registration Statement, use their reasonable best efforts to register or qualify, or cooperate with
the Notice Holders of Securities included therein and their respective counsel in connection with
the registration or qualification of, such Securities for offer and sale under the securities or
blue sky laws of such jurisdictions as any such Notice Holders reasonably requests in writing and
do any and all other acts or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities covered by the Shelf Registration Statement; prior to any public
offering of the Registrable Securities pursuant to the Shelf Registration Statement, use its
reasonable efforts to keep each such registration or qualification (or exemption therefrom)
effective during the Effective Period in connection with such Notice Holder’s offer and sale of
Registrable Securities pursuant to such registration or qualification (or exemption therefrom) and
do any and all other acts or things necessary or advisable to enable the disposition in such
jurisdictions of such Registrable Securities in the manner set forth in the Shelf Registration
Statement and the related Prospectus; provided that the Company and the Guarantors will not be
required to qualify generally to do business in any jurisdiction where it is not then so qualified
or to take any action which would subject it to general service of process or to taxation in any
such jurisdiction where it is not then so subject;




     (vi) use its reasonable best efforts to prevent the issuance of, and if issued, to obtain the
withdrawal of any order suspending the
effectiveness of the Shelf Registration Statement or, in the event of an
objection of the SEC pursuant to Rule 401(g)(2), promptly file an amendment
to such Shelf Registration Statement on the proper form, and to lift any
suspension of the qualification of any of the Registrable Securities for
sale in any jurisdiction in which they have been qualified for sale, in
each case at the earliest practicable date;




     (vii) upon reasonable notice, for a reasonable period prior to
the filing of the Shelf Registration Statement, and throughout the
Effective Period, (i) make reasonably available for inspection by a representative of, and
Special Counsel acting for, Majority Holders of the Securities being sold and any underwriter (and
its counsel)
participating in any disposition of Securities pursuant to such Shelf Registration Statement, all
relevant financial and other records, pertinent corporate documents and properties of the Company
and its subsidiaries and (ii) use reasonable best efforts to have their officers, directors,
employees, accountants and counsel supply all relevant information reasonably requested by such
representative, Special Counsel or any such underwriter in connection with such Shelf Registration
Statement;




     (viii) if requested by Majority Holders of the Securities being sold in an underwriting, their
Special Counsel or the managing underwriters (if any) in connection with such Shelf Registration
Statement, use their reasonable best efforts to cause (i) their counsel to deliver an opinion
relating to the Shelf Registration Statement and the Securities in customary form, (ii) their
officers to execute and deliver all customary documents and certificates requested by the Majority
Holders of the Securities being sold, their Special Counsel or the managing underwriters (if any)
and (iii) their independent registered public accounting firm to provide a letter confirming that
they are an independent registered public accounting firm within the rules and regulations









 



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adopted by the SEC and the Public Accounting Oversight Board (United States) and as required
by the Securities Act, substantially in the form of the letter delivered to the Initial Purchaser
pursuant to Section 6(h) of the Purchase Agreement, with, in the case of an amendment or supplement
that includes audited financial information, such changes as may be necessary to reflect the
amended or supplemented financial information.




     (ix) if reasonably requested by the Initial Purchaser or any Notice Holder, promptly
incorporate in a prospectus supplement or post-effective amendment to the Shelf Registration
Statement such information as the Initial Purchaser or such Notice Holder shall, on the basis of a
written opinion of nationally-recognized counsel experienced in such matters, determine to be
required to be included therein by applicable law and make any required filings of such prospectus
supplement or such post-effective amendment; provided, that the Company shall not be required to
take any actions under this Section 3(a)(ix) that are not, in the reasonable opinion of counsel for
the Company, in compliance with
applicable law;




     (x) promptly furnish to each Notice Holder and the Initial Purchaser, upon their request and
without charge, at least one (1) conformed copy of the Shelf Registration Statement and any
amendments thereto, including financial statements but excluding schedules, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits; provided, however,
that the Company shall have no obligation
to deliver to Notice Holders or the Initial Purchaser a copy of any amendment consisting
exclusively of an Exchange Act report or other Exchange Act filing otherwise publicly available on
the Company’s website;




     (xi) during the Effective Period, deliver to each Notice Holder in connection with any sale of
Registrable Securities pursuant to the Shelf Registration Statement, without charge, as many copies
of the Prospectus relating to such Registrable Securities (including each preliminary prospectus)
and any amendment or supplement thereto as such Notice Holder may reasonably request; and the
Company hereby consents (except during such periods that a Deferral Notice is outstanding and has
not been revoked) to the use of such Prospectus or each amendment or supplement thereto by each
Notice Holder in connection with any offering and sale of the Registrable Securities covered by
such Prospectus or any amendment or supplement thereto in the manner set forth therein; and




     (xii) cooperate with the Notice Holders of Securities to facilitate the timely preparation and
delivery of certificates representing Securities to be sold pursuant to the Shelf Registration
Statement free of any restrictive legends and in such denominations and registered in such names as
the Holders thereof may request in writing at least two business days prior to sales of Securities
pursuant to such Shelf Registration Statement; provided that nothing herein shall require the
Company to deliver certificated Notes to any beneficial holder of Notes except as required by the
Indenture.




     (b) Upon (A) the issuance by the Commission of a stop order suspending the effectiveness of
the Shelf Registration Statement or the initiation of proceedings with respect to the Shelf
Registration Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any
event or the existence of any Material Event as a result of which the Shelf Registration Statement
shall contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading, or any Prospectus
shall contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (C) the occurrence or existence of any corporate
development that, in the discretion of the Company, makes it appropriate to suspend the
availability of the Shelf Registration









 



11



Statement and the related Prospectus, the Company will (i) in the case of clause (B) above,
subject to the third sentence of this provision, as promptly as is practicable prepare and file a
post-effective amendment to such Shelf Registration Statement or a supplement to the related
Prospectus or any document incorporated therein by reference or
file any other required document that would be incorporated by reference into such Shelf
Registration Statement and Prospectus so that such Shelf Registration Statement does not contain
any untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and such Prospectus does not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, as thereafter delivered
(or, to the extent permitted by law, made available) to the purchasers of the Registrable
Securities being sold thereunder, and, in the case of a post-effective amendment to the Shelf
Registration Statement, subject to the third sentence of this provision, use reasonable efforts to
cause it to be declared effective or otherwise become effective as promptly as is practicable, and
(ii) give notice to the Notice Holders that the availability of the Shelf Registration Statement is
suspended (a “Deferral Notice”). Upon receipt of any Deferral Notice, each Notice Holder agrees not
to sell any Registrable Securities pursuant to the Shelf Registration Statement until such Notice
Holder’s receipt of copies of the supplemented or amended Prospectus provided for in clause (i)
above, or until it is advised in writing by the Company that the Prospectus may be used, and has
received copies of any additional or supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus. The Company will use its reasonable best efforts to
ensure that the use of the Prospectus may be resumed (x) in the case of clause (A) above, as
promptly as is practicable, (y) in the case of clause (B) above, as soon as, in the sole judgment
of the Company, public disclosure of such Material Event would not be prejudicial to or contrary to
the interests of the Company or, if necessary to avoid unreasonable burden or expense, as soon as
practicable thereafter and (z) in the case of clause (C) above, as soon as, in the discretion of
the Company, such suspension is no longer appropriate; provided that the period during which the
availability of the Shelf Registration Statement and any Prospectus is suspended (the “Deferral
Period”), without the Company incurring any obligation to pay Additional Interest pursuant to
Section 2(d), shall not exceed 120 days in the aggregate in any 12 month period.




     (c) Each Holder of Registrable Securities agrees that upon receipt of any Deferral Notice from
the Company, such Holder shall forthwith discontinue (and cause any placement or sales agent or
underwriters acting on their behalf to discontinue) the disposition of Registrable Securities
pursuant to the registration statement applicable to such Registrable Securities until such Holder
(i) shall have received copies of such amended or supplemented Prospectus and, if so directed by
the Company, such Holder shall deliver to the Company (at the Company’s expense) all copies, other
than permanent file copies, then in such Holder’s possession of the Prospectus covering such
Registrable Securities at the time of receipt of such notice or (ii) shall have received notice
from the Company that the disposition of Registrable Securities pursuant to the Shelf Registration
may continue.




     (d) The Company and the Guarantors shall, so long as any Registrable Securities remain
outstanding, cause each Additional Guarantor upon the
creation or acquisition by the Company of such Additional Guarantor, to (i) execute and deliver a
supplemental indenture to the Indenture and (ii) deliver to the Trustee an opinion of counsel to
the effect that (A) the supplemental indenture has been duly executed and authorized and (B) the
supplemental indenture constitutes a valid, binding and enforceable obligation of such Additional
Guarantor, except insofar as enforcement thereof may be limited by bankruptcy, insolvency or
similar laws (including, without limitation, all laws relating to fraudulent transfers) and except
insofar as enforcement thereof is subject to general principles of equity.









 



12



     (e) The Company may require each Holder of Registrable Securities as to which any registration
pursuant to Section 2(a) is being effected to furnish to the Company such information regarding
such Holder and such Holder’s intended method of distribution of such Registrable Securities as the
Company may from time to time reasonably request in writing, but only to the extent that such
information is required in order to comply with the Securities Act. Each such Holder agrees to
notify the Company as promptly as practicable of any inaccuracy or change in information previously
furnished by such Holder to the Company or of the occurrence of any event in either case as a
result of which any Prospectus relating to such registration contains or would contain an untrue
statement of a material fact regarding such Holder or such Holder’s intended method of disposition
of such Registrable Securities or omits to state any material fact regarding such Holder or such
Holder’s intended method of disposition of such Registrable Securities required to be stated
therein or necessary to make the statements therein not misleading, and promptly to furnish to the
Company any additional information required to correct and update any previously furnished
information or required so that such Prospectus shall not contain, with respect to such Holder or
the disposition of such Registrable Securities, an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading.




     (f) The Company shall comply with all applicable rules and regulations of the Commission and
make generally available to its securityholders earning statements (which need not be audited)
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any
similar rule promulgated under the Securities Act) no later than (i) 40 days after the end of any
12-month period (or 60 days after the end of any 12-month
period if such period is a fiscal year) if the Company is at such time an “accelerated filer”
and (ii) 45 days after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) if the Company is not an “accelerated filer” commencing on
the first day of the first fiscal quarter of the Company commencing after the effective date of the
Shelf Registration Statement, which statements shall cover said 12-month periods.




     (g) The Company shall provide a CUSIP number for all Registrable Securities covered by the
Shelf Registration Statement not later than the initial effective date of such Shelf Registration
Statement and provide the Trustee for the Notes and the transfer agent for the Shares with printed
certificates for the Registrable Securities that are in a form eligible for deposit with The
Depository Trust Company.




     (h) The Company shall use its reasonable efforts to provide such
information as is required for any filings required to be made with the National Association
of Securities Dealers, Inc.




     (i) Until the expiration of two years after the Closing Date, the Company will not, and will
not permit any of its “affiliates” (as defined in Rule 144) to, resell any of the Securities that
have been reacquired by any of them except pursuant to an effective registration statement under
the Securities Act.




     (j) The Company shall cause the Indenture to be qualified under the Trust Indenture Act in a
timely manner.




     (k) The Company shall enter into such customary agreements and take all such other necessary,
reasonable and lawful actions in connection therewith (including those requested by the Majority
Holders of the Registrable Securities covered by the Shelf Registration Statement) in order to
expedite or facilitate disposition of such Registrable Securities.









 



13


     4. Holder’s Obligations.



     Each Holder agrees, by acquisition of the Registrable Securities, that no Holder of
Registrable Securities shall be entitled to sell any of such Registrable Securities pursuant to the
Shelf Registration Statement or to receive a Prospectus relating thereto, unless such Holder has
furnished the Company with a Notice and Questionnaire as required pursuant to Section 2(c) hereof
(including the information required to be included in such Notice and Questionnaire) and the
information set forth in the next sentence. Each Notice Holder agrees promptly to furnish to the
Company all information required to be disclosed in order to make the information previously
furnished to the Company by such Notice Holder not misleading and any other information regarding
such Notice Holder and the distribution of such Registrable Securities as may be required to be
disclosed in the Shelf Registration Statement under applicable law or pursuant to Commission
comments. Each Holder further agrees not to sell any Registrable Securities pursuant to the Shelf
Registration Statement without delivering, or causing to be delivered, a Prospectus to the
purchaser thereof and, following termination of the Effective Period, to notify the Company, within
10 business days of a request by the Company, of the amount of Registrable Securities sold pursuant
to the Shelf Registration Statement and, in
the absence of a response, the Company may assume that all of the Holder’s
Registrable Securities were so sold.



     5. Registration Expenses.



     The Company agrees to bear and to pay or cause to be paid promptly upon request being made
therefor all expenses incident to the Company’s performance of or compliance with this Agreement,
including, but not limited to, (a) all Commission and any NASD registration and filing fees and
expenses, (b) all fees and expenses in connection with the qualification of the Securities for
offering and sale under the State securities and Blue Sky laws referred to in Section 3(a)(v)
hereof, including reasonable fees and disbursements of one counsel for the placement agent or
underwriters, if any, in connection with such qualifications, (c) all expenses relating to the
preparation, printing, distribution and reproduction of the Shelf Registration Statement, the
related Prospectus and each amendment or supplement to each of the foregoing, the certificates
representing the Securities and all other documents relating hereto, (d) fees and expenses of the
Trustee under the Indenture, any escrow agent or custodian, and of the registrar and transfer agent
for the Shares, (e) fees, disbursements and expenses of counsel and independent certified public
accountants of the Company (including the expenses of any opinions or “cold comfort” letters
required by or incident to such performance and compliance) and (f) reasonable fees, disbursements
and expenses of not more than one counsel for the Holders of Registrable Securities retained in
connection with the Shelf Registration Statement, as selected by the Company (unless reasonably
objected to by the Majority Holders of the Registrable Securities being registered, in which case
the Majority Holders shall select such counsel for the Holders) (“Special Counsel”), and fees,
expenses and disbursements of any other Persons, including special experts, retained by the Company
in connection with such registration (collectively, the “Registration Expenses”). To the extent
that any Registration Expenses are incurred, assumed or paid by any Holder of Registrable
Securities or any underwriter or placement agent therefor, the Company shall reimburse such Person
for the full amount of the Registration Expenses so incurred, assumed or paid promptly after
receipt of a documented request therefor. Notwithstanding the foregoing, the Holders of the
Registrable Securities being registered shall pay all underwriting discounts and commissions and
placement agent fees and commissions attributable to the sale of such Registrable Securities and
the fees and disbursements of any counsel or other advisors or experts retained by such Holders
(severally or jointly), other than the counsel and experts specifically referred to above.



     6. Indemnification.




     (a) The Company and each of the Guarantors shall jointly and severally indemnify and hold
harmless each Holder (including, without limitation, the Initial Purchaser), its affiliates, their









 



14



respective officers, directors, employees, representatives and agents, and each person, if
any, who controls such Holder within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 6 and Section 7 as a Holder) from and
against any loss, claim, damage or liability, joint or several, or any action in respect thereof
(including, without limitation, any loss, claim, damage, liability or action relating to purchases
and sales of Securities), to which that Holder may become subject, whether commenced or threatened,
under the Securities Act, the Exchange Act, any other federal or state statutory law or regulation,
at common law or otherwise, insofar as such loss, claim, damage, liability or action arises out of,
or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained
in any such Registration Statement, (ii) any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus, any Free Writing Prospectus or any “issuer information”
(“Issuer Information”) filed or required to be filed pursuant to Rule 433(d) under the Securities
Act or (ii) any omission or alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and shall reimburse each Holder promptly upon demand
for any legal or other expenses reasonably incurred by that Holder in connection with investigating
or defending or preparing to defend against or appearing as a third party witness in connection
with any such loss, claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company and the Guarantors shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is based upon, an untrue
statement or alleged untrue statement in or omission or alleged omission from any of such documents
in reliance upon and in conformity with any information provided by a Holder in its most recent
Notice and Questionnaire; and provided, further, that with respect to any such untrue statement in
or omission from any related preliminary prospectus, the indemnity agreement contained in this
Section 6(a) shall not inure to the benefit of any Holder from whom the person asserting any such
loss, claim, damage, liability or action received Securities to the extent that such loss, claim,
damage, liability or action of or with respect to such Holder results from the fact that both (A) a
copy of the final prospectus was not sent or given to such person at or prior to the written
confirmation of the sale of such Securities to such person and (B) the untrue statement in or
omission from the related preliminary prospectus was corrected in the final prospectus unless, in
either case, such failure to deliver the final Prospectus was a result of non-compliance by the
Company or any Guarantor with Section 4. This indemnity agreement shall be in addition to any
liability that the Company or the Guarantor may otherwise have.



     The Company and the Guarantors also shall jointly and severally indemnify and hold harmless as
provided in this Section 6(a) or contribute as provided in Section 7 hereof with respect to any
loss, claim, damage, liability or action of each underwriter, if any, of Securities registered
under the Shelf Registration Statement, its
affiliates, their respective officers, directors, employees, representatives and agents, and each
person, if any, who controls such underwriter within the meaning of the Securities Act or the
Exchange Act on substantially the same basis as that of the indemnification of the selling Holders
provided in this paragraph (a) and shall, if requested by any Holder, enter into an underwriting
agreement reflecting such agreement.




     (b) Each Holder shall indemnify and hold harmless the Company, each Guarantor and their
respective affiliates, their respective officers, directors, employees, representatives and agents,
and each person, if any, who controls the Company or any Guarantor within the meaning of the
Securities Act or the Exchange Act (collectively referred to for purposes of this Section 6(b) and
Section 7 as the Company), from and against any loss, claim, damage or liability, joint or several,
or any action in respect thereof, to which the Company may become subject, whether commenced or
threatened, under the Securities Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material
fact









 



15



contained in any such Registration Statement or any prospectus forming part thereof or in any
amendment or supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with any information furnished to the Company by such
Holder in its most recent Notice and Questionnaire, and shall reimburse the Company for any legal
or other expenses reasonably incurred by the Company in connection with investigating or defending
or preparing to defend against or appearing as a third party witness in connection with any such
loss, claim, damage, liability or action as such expenses are incurred; provided, however, that no
such Holder shall be liable for any indemnity claims hereunder in excess of the amount of net
proceeds received by such Holder from the sale of Securities pursuant to such Shelf Registration
Statement. This indemnity agreement will be in addition to any liability which any such Holder may
otherwise have.




     (c) Promptly after receipt by an indemnified party under this Section 6 of notice of any claim
or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to
be made against the indemnifying party pursuant to Section 6(a) or 6(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it from any liability which it may have
under this Section 6 except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 6. If any such claim or
action shall be brought against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by the indemnified party in connection with the defense
thereof other than the reasonable costs of investigation; provided, however, that an indemnified
party shall have the right to employ its own counsel in any such action, but the fees, expenses and
other charges of such counsel for the indemnified party will be at the expense of such indemnified
party unless (1) the employment of counsel by the indemnified party has been authorized in writing
by the indemnifying party, (2) the indemnified party has reasonably concluded (based upon advice of
counsel to the indemnified party) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those available to the indemnifying
party, (3) a conflict or potential conflict exists (based upon advice of counsel to the indemnified
party) between the indemnified party and the indemnifying party (in which case the indemnifying
party will not have the right to direct the defense of such action on behalf of the indemnified
party) or (4) the indemnifying party has not in fact employed counsel reasonably satisfactory to
the indemnified party to assume the defense of such action within a reasonable time after receiving
notice of the commencement of the action, in each of which cases the reasonable fees, disbursements
and other charges of counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm of attorneys (in addition to any local counsel) at any
one time for all such indemnified party or parties. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 6(a) and 6(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or claim. No indemnifying
party shall be liable for any settlement of any such action effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with its written consent or if









 



16



there be a final judgment for the plaintiff in any such action, the indemnifying party agrees
to indemnify and hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment or if the indemnifying party has not paid the expenses and
fees for which it is liable 20 days after notice by the indemnified party of request for
reimbursement. No indemnifying party shall, without the prior written consent of the indemnified
party (which consent shall not be unreasonably withheld), effect any settlement of any pending or
threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnity could have been sought hereunder
by such indemnified party, unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of such proceeding and
(ii) does not include a statement or admission of fault, culpability or a failure to act, by or on
behalf of the indemnified party.



     (d) The provisions of this Section 6 and Section 7 shall remain in full force and effect,
regardless of any investigation made by or on behalf of any Holder, the Company, the Guarantors or
any of the indemnified Persons referred to in this Section 6 and Section 7, and shall survive the
sale by a Holder of securities covered by the Shelf Registration Statement.



     7. Contribution.



     If the
indemnification provided for in Section 6 is unavailable or insufficient to hold harmless an
indemnified party under Section 6(a) or 6(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits received by the Company
and the Guarantors from the offering and sale of the Notes, on the one hand, and a Holder with
respect to the sale by such Holder of Securities, on the other, or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also the relative fault
of the Company and each of the Guarantors on the one hand and such Holder on the other with respect
to the statements or omissions that resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The relative benefits
received by the Company and each of the Guarantors on the one hand and a Holder on the other with
respect to such offering and such sale shall be deemed to be in the same proportion as the total
net proceeds from the offering of the Notes (before deducting expenses) received by or on behalf of
the Company and each of the Guarantors, on the one hand, and the total discounts and commissions
received by such Holder with respect to the Securities, on the other, bear to the total gross
proceeds from the sale of Securities. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to the Company and each of the Guarantors or
information supplied by the Company and each of the Guarantors on the one hand or to any
information contained in the relevant Notice and Questionnaire supplied by such Holder on the
other, the intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The parties hereto agree that
it would not be just and equitable if contributions pursuant to this Section 7 were to be
determined by pro rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 7 shall be deemed to include, for purposes of this
Section 7, any legal or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending or preparing to defend any such action or
claim. Notwithstanding the provisions of this Section 7, an indemnifying party that is a Holder of
Securities shall not be required to contribute any amount in excess of the amount by which the
total price at which the Securities sold by such indemnifying party to any purchaser exceeds the
amount of any damages which such indemnifying party has otherwise paid or become liable to pay by









 



17

reason of any untrue or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders’ obligations to contribute pursuant to this Section 7 are several
and not joint.




     8. Rule 144A and Rule 144.



     So long as any Registrable Securities remain outstanding, the Company shall use its reasonable
best efforts to file the reports required to be filed by it under Rule 144A(d)(4) under the
Securities Act and the Exchange Act in a timely manner and, if at any time the Company is not
required to file such reports, it will, upon the written request of any Holder of Registrable
Securities, make publicly available other information so long as necessary to permit sales of such
Holder’s securities pursuant to Rules 144 and 144A. The Company and the Guarantors covenant that
they will take such further action as any Holder of Registrable Securities may reasonably request,
all to the extent required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the exemptions provided by
Rules 144 and 144A (including, without limitation, the requirements of Rule 144A(d)(4)). Upon the
written request of any Holder of Registrable Securities, the Company and the Guarantors shall
deliver to such Holder a written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 8 shall be deemed to require the Company to
register any of its securities pursuant to the Exchange Act.



     9. Miscellaneous.




     (a) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of Majority Holders. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Securities are being sold pursuant to the Shelf
Registration Statement and that does not directly or indirectly affect the rights of other Holders
may be given by Holders of a majority in aggregate amount of the Securities being sold by such
Holders pursuant to the Shelf Registration Statement.



     (b) Notices. All notices and other communications provided for or permitted hereunder shall be
made in writing by hand-delivery, first-class mail, telecopier or air courier guaranteeing next-day
delivery:




     (i) If to the Company or the Guarantors, initially at the address set forth in the Purchase
Agreement;




     (ii) If to the Initial Purchaser, initially at its address set forth in the Purchase
Agreement; and




     (iii) If to a Holder, to the address of such Holder set forth in the security register, the
Notice and Questionnaire or other records
of the Company.



     All such notices and communications shall be deemed to have been duly given: when delivered by
hand, if personally delivered; one business day after being delivered to a next-day air courier;
five business days after being deposited in the mail; and when receipt is acknowledged by the
recipient’s telecopier machine, if sent by telecopier.









 



18



     (c) Successors and Assigns. This Agreement shall be binding upon the Company, the Guarantors
and their respective successors and assigns.



     (d) Counterparts. This Agreement may be executed in
any number of counterparts (which may be delivered in original form or by telecopier) and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.




     (e) Definition of Terms. For purposes of this Agreement, (a) the term “business day” means any
day on which the New York Stock Exchange, Inc. is open for trading, (b) the term “subsidiary” has
the meaning set forth in Rule 405 under the Securities Act and (c) except where otherwise expressly
provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities Act.




     (f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.




     (g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.




     (h) Remedies. In the event of a breach by the Company or any of the Guarantors or by any
Holder of any of their respective obligations under this Agreement, each Holder or the Company or
any Guarantor, as the case may be, in addition to being entitled to exercise all rights granted by
law, including recovery of damages (other than the recovery of damages for a breach by the Company
or any Guarantor of their obligations under Section 2 hereof for which Additional Interest have
been paid pursuant to Section 3 hereof), will be entitled to specific performance of its rights
under this Agreement. The Company, each Guarantor and each Holder agree that monetary damages would
not be adequate compensation for any loss incurred by reason of a breach by it
of any of the provisions of this Agreement and hereby further agree that, in the event of any
action for specific performance in respect of such breach, it shall waive the defense that a remedy
at law would be adequate.




     (i) No Inconsistent Agreements. Each of the Company and each Guarantor represents, warrants
and agrees that (i) it has not entered into, and shall not, on or after the date of this Agreement,
enter into any agreement that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof, (ii) it has not previously entered
into any agreement which remains in effect granting any registration rights with respect to any of
its debt securities to any person and (iii) without limiting the generality of the foregoing,
without the written consent of the Holders of a majority in aggregate principal amount of the then
outstanding Registrable Securities, it shall not grant to any person the right to request the
Company to register any debt securities of the Company under the Securities Act unless the rights
so granted are not in conflict or inconsistent with the provisions of this Agreement.




     (j) No Piggyback on Registrations. Neither the Company nor the Guarantors nor any of their
respective security holders (other than the Holders of Registrable Securities in such capacity)
shall have the right to include any securities of the Company in any Shelf Registration Statement
other than Registrable Securities.




     (k) Severability. The remedies provided herein are cumulative and not exclusive of any
remedies provided by law. If any term, provision, covenant or restriction of this Agreement is held
by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect









 



19



and shall in no way be affected, impaired or invalidated, and the parties hereto shall use
their reasonable best efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions without including
any of such that may be hereafter declared invalid, illegal, void or unenforceable.




     (l) Survival. The respective indemnities, agreements, representations, warranties and each
other provision set forth in this Agreement or made pursuant hereto shall remain in full force and
effect regardless of any investigation (or statement as to the results thereof) made by or on
behalf of any Holder of Registrable Securities, any director, officer or partner of such Holder,
any agent or underwriter or any director, officer or partner thereof, or any controlling person of
any of the foregoing, and shall survive delivery of and payment for the Registrable Securities
pursuant to the Purchase Agreement and the transfer and registration of Registrable Securities by
such Holder.




     (m) Securities Held by the Company, etc. Whenever the consent or approval
of Holders of a specified percentage of Securities is required hereunder, Securities held by the
Company or its affiliates (other than subsequent Holders of Securities if such subsequent Holders
are deemed to be affiliates solely by reason of their holdings of such Securities) shall not be
counted in determining whether such consent or approval was given by the Holders of such required
percentage.









 






     If the foregoing is in accordance with your understanding of our agreement, kindly sign
and return to us a counterpart hereof, whereupon this instrument will become a binding agreement
among the Company, the Guarantors and the Initial Purchaser in accordance with its terms.



	 	 	 	 	 
	 	Very truly yours,





CALGON CARBON CORPORATION

 	 
	 	By:  	/s/ Leroy M. Ball
 	 
	 	 	Name:  	Leroy M. Ball 	 
	 	 	Title:  	Senior Vice President and Chief
Financial Officer 	 
	 
	 	CALGON CARBON INVESTMENTS, INC.

 	 
	 	By:  	/s/ Leroy M. Ball
 	 
	 	 	Name:  	Leroy M. Ball 	 
	 	 	Title:  	Vice President and Secretary 	 
	 
	 	BSC COLUMBUS, LLC

 	 
	 	By:  	/s/ Leroy M. Ball
 	 
	 	 	Name:  	Leroy M. Ball 	 
	 	 	Title:  	Manager 	 
	 
	 	CCC COLUMBUS, LLC

 	 
	 	By:  	/s/ Leroy M. Ball
 	 
	 	 	Name:  	Leroy M. Ball 	 
	 	 	Title:  	Manager 	 
	 




     The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.



	 	 	 	 	 
	J.P. MORGAN SECURITIES INC.

 	 	 
	By:  	/s/ Santosh Sreenivasan
 	 	 
	 	Name:  	Santosh Sreenivasan 	 	 
	 	Title:  	Vice President