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EXHIBIT 4.1
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REGISTRATION RIGHTS AGREEMENT
Depositary Shares Representing a One-Tenth Interest in a Share of
6 1/2% Convertible Preferred Stock
Dated as of April 13, 1998
by and among
SENSORMATIC ELECTRONICS CORPORATION,
BEAR, XXXXXXX & CO. INC.
XXXXXX BROTHERS INC.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
XXXXXXXX & CO. INC.
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This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of April 13, 1998, by and among Sensormatic Electronics
Corporation, a Delaware corporation (the "Company"), and Bear, Xxxxxxx & Co.
Inc., Xxxxxx Brothers Inc., NationsBanc Xxxxxxxxxx Securities LLC and Xxxxxxxx &
Co. Inc. (each an "INITIAL PURCHASER" and together, the "INITIAL PURCHASERS"),
each of whom have agreed to purchase Depositary Shares (the "DEPOSITARY
SHARES"), each representing a one-tenth interest in a share of the Company's 6
1/2% Convertible Preferred Stock (the "PREFERRED STOCK") pursuant to the
Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement in respect to
the Preferred Stock, dated April 6, 1998 (the "PURCHASE AGREEMENT"), by and
among the Company and the Initial Purchasers. In order to induce the Initial
Purchasers to purchase the Depositary Shares, the Company has agreed to provide
the registration rights set forth in this Agreement. The execution and delivery
of this Agreement is a condition to the obligations of the Initial Purchasers
set forth in Section 7 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACT: The Securities Act of 1933, as amended
AVERAGE STOCK PRICE: The average of the high and low sales prices of
the Common Stock (as defined herein) as reported by the New York Stock Exchange
or any national securities exchange upon which the Common Stock is then listed,
for each of the ten consecutive trading days immediately preceding the fifth
business day preceding the record date related to such Dividend Payment Date.
BUSINESS DAY: Any day except a Saturday, Sunday or other day in the
City of New York, on which banks are authorized to close.
CERTIFICATE OF DESIGNATIONS: The Certificate of Designations pursuant
to which the Depositary Shares, Preferred Stock, and Common Stock issuable upon
conversion of the Preferred Stock are to be issued, as such Certificate of
Designations is amended or supplemented from time to time in accordance with the
terms thereof.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
COMMON STOCK: The common stock of the Company to be issued upon
conversion of the Preferred Stock, as dividends in respect of Preferred Stock
and as Liquidated Damages.
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DAMAGES PAYMENT DATE: Each Dividend Payment Date.
DEFINITIVE SECURITIES: As defined in the Deposit Agreement.
DEPOSIT AGREEMENT: The Deposit Agreement dated the date hereof between
the Company and BankBoston, N.A., a national banking association.
DIVIDEND PAYMENT DATE: As defined in the Certificate of Designations.
EFFECTIVENESS TARGET DATE: As defined in Section 4.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXEMPT RESALES: The transactions in which the Initial Purchasers
propose to sell the Depositary Shares to certain "QUALIFIED INSTITUTIONAL
BUYERS," as such term is defined in Rule 144A under the Act, and to certain
institutional "ACCREDITED INVESTORS," as such term is defined in Rule 501(a)(1),
(2), (3) and (7) of Regulation D under the Act.
GLOBAL CERTIFICATE HOLDER: As defined in the Deposit Agreement.
HOLDERS: As defined in Section 2 hereof.
LIQUIDATED DAMAGES: As defined in Section 4 hereof.
LIQUIDATION PREFERENCE: As defined in the Certificate of Designations.
NASD: National Association of Securities Dealers, Inc.
OFFERING MEMORANDUM: The final offering memorandum, dated April 7,
1998, relating to the Company, the Depositary Shares and the Preferred Stock.
PERSON: An individual, partnership, corporation, trust, unincorporated
organization, or a government or agency or political subdivision thereof.
PRELIMINARY OFFERING MEMORANDUM: The preliminary offering memorandum,
dated March 26, 1998, relating to the Company, the Depositary Shares, and the
Preferred Stock.
PROSPECTUS: The prospectus included in a Shelf Registration Statement
at the time such Shelf Registration Statement is declared effective, as amended
or supplemented by any prospectus supplement, and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
REGISTRATION DEFAULT: As defined in Section 4 hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 3 hereof.
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SHELF FILING DEADLINE: As defined in Section 3 hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 3 hereof.
TRANSFER AGENT: The transfer agent with respect to the Depositary
Shares and the Preferred Stock.
TRANSFER RESTRICTED SECURITIES: Each Depositary Share, each share of
Preferred Stock, and each share of Common Stock, until the earliest to occur of
(i) the date on which the transfer of such Depositary Share, share of Preferred
Stock, or share of Common Stock, as the case may be, is effectively registered
under the Act and such share is disposed of in accordance with the Shelf
Registration Statement or (ii) the date on which such Depositary Share, share of
Preferred Stock, or share of Common Stock, as the case may be, is distributed to
the public pursuant to Rule 144 under the Act or may be distributed to the
public pursuant to Rule 144(k) under the Securities Act.
UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING: A registration in
which securities of the Company are sold to an underwriter for re-offering to
the public.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "HOLDER") whenever such Person owns Transfer Restricted Securities.
SECTION 3. SHELF REGISTRATION
(a) SHELF REGISTRATION. The Company shall:
(x) cause to be filed on or prior to 60 days after the
consummation of the offering of Preferred Stock (and the related
Depositary Shares) (the "SHELF FILING DEADLINE"), a shelf registration
statement pursuant to Rule 415 under the Act (the "SHELF REGISTRATION
STATEMENT"), relating to resales of all Transfer Restricted Securities
the Holders of which shall have provided the information required
pursuant to Section 3(b) hereof, and
(y) use its reasonable best efforts to cause such Shelf
Registration Statement to become effective on or prior to 60 days after
the Shelf Filing Deadline.
The Company shall use its reasonable best efforts to keep the Shelf Registration
Statement discussed in this Section 3(a) continuously effective, supplemented
and amended as required by the provisions of Sections 5(b) and (c) hereof to the
extent necessary to ensure that it is available for resales of Transfer
Restricted Securities by the Holders thereof entitled to the benefit of this
Section 3(a), and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period
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expiring on the earlier of (i) the date when there are no longer any Transfer
Restricted Securities included in the Shelf Registration Statement, or (ii) the
second anniversary of the effectiveness of the Shelf Registration Statement;
PROVIDED, that the Company will have the option of suspending the effectiveness
of the Shelf Registration Statement for one period of up to 30 trading days if
the Board of Directors of the Company determines that compliance with the
disclosure obligations necessary to maintain the effectiveness of the Shelf
Registration Statement at such time could reasonably be expected to have a
material adverse effect on the Company (a "PERMITTED SUSPENSION").
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH THE
SHELF REGISTRATION Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in the Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 Business Days after receipt of a request
therefor, such information specified in item 507 of Regulation S-K under the Act
for use in connection with the Shelf Registration Statement or Prospectus or the
preliminary Prospectus included therein, including the information set forth in
the questionnaire included as Annex B to the Offering Memorandum. No Holder of
Transfer Restricted Securities shall be entitled to Liquidated Damages pursuant
to Section 4 hereof unless and until such Holder shall have provided all such
information required to be provided by such Holder for inclusion therein. Each
Holder as to which the Shelf Registration Statement is being effected agrees to
furnish promptly to the Company, for so long as the Shelf Registration Statement
is effective, all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially
misleading.
SECTION 4. LIQUIDATED DAMAGES
If (i) the Company fails to file the Shelf Registration Statement with
the Commission on or prior to the Shelf Filing Deadline, (ii) the Shelf
Registration Statement has not been declared effective by the Commission on or
prior to the 60th day after the Shelf Filing Deadline (the "EFFECTIVENESS TARGET
DATE"), whether or not the Company has breached any obligation to use its
reasonable best efforts to cause the Shelf Registration Statement to be declared
effective, or (iii) the Shelf Registration Statement is declared effective but
thereafter ceases to be effective or usable in connection with resales of
Transfer Restricted Securities for any period of ten consecutive trading days or
for any 30 trading days in any 180-day period without being succeeded within the
time period provided for herein by a post effective amendment to such Shelf
Registration Statement that cures such failure and that is itself declared
effective within ten Business Days of the filing thereof, PROVIDED, that such
effectiveness was not suspended in connection with a Permitted Suspension (a
"REGISTRATION DEFAULT"), then commencing on the day following the date on which
such Registration Default occurs, the Company agrees to pay to each Holder of
Transfer Restricted Securities affected by such Registration Default, liquidated
damages ("LIQUIDATED DAMAGES") at an annual rate of $0.625 per $250 Liquidation
Preference of Preferred Stock (or $0.0625 per $25.00 Liquidation Preference of
Depositary Shares) constituting Transfer Restricted Securities held by such
Holder until such Registration Default is cured. The obligation of the Company
to pay Liquidated Damages is the sole obligation of the Company to the Holders
of Transfer Restricted Securities for Registration Defaults.
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All Liquidated Damages will be payable, at the option of the Company,
(1) in cash, (2) by delivery of shares of Common Stock, or (3) through any
combination of the foregoing. All accrued Liquidated Damages to be paid in cash
shall be paid to the Global Certificate Holder by wire transfer of immediately
available funds or by federal funds check and to Holders of Definitive
Securities by mailing checks to their registered addresses by the Company on
each Damages Payment Date. All accrued Liquidated Damages to be paid in Common
Stock shall be paid by the Company by mailing certificates representing such
Common Stock to the Global Certificate Holder and to Holders of Definitive
Securities at their registered addresses on each Damages Payment Date. If the
Liquidated Damages are paid in shares of Common Stock, the number of shares of
Common Stock to be issued on each Dividend Payment Date will be determined by
dividing the total Liquidated Damages to be paid on each share of Preferred
Stock by the Average Stock Price. The Company shall not issue any fractional
shares of Common Stock as payment for Liquidated Damages. Instead the Company
shall round the number of shares to be issued up to the nearest full share of
Common Stock. All obligations of the Company set forth in the preceding
paragraph that are outstanding with respect to any Transfer Restricted Security
at the time such security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to such security
shall have been satisfied in full.
SECTION 5. REGISTRATION PROCEDURES
(a) SHELF REGISTRATION STATEMENT. In connection with the Shelf
Registration Statement, the Company shall comply with all the provisions of
Section 5(c) below and shall use its reasonable best efforts to effect such
registration to permit the sale of the Transfer Restricted Securities being sold
in accordance with the intended method or methods of distribution thereof (as
indicated in the information furnished to the Company pursuant to Section 3(b)
hereof), and pursuant thereto, the Company will prepare and file with the
Commission a Shelf Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof within the time periods and otherwise in
accordance with the provisions hereof.
(b) GENERAL PROVISIONS. In connection with the Shelf Registration
Statement and any related Prospectus required by this Agreement to permit the
sale or resale of Transfer Restricted Securities, the Company shall:
(i) use its reasonable best efforts to keep such Shelf
Registration Statement continuously effective, subject to a Permitted
Suspension, and provide all requisite financial statements for the
period specified in Section 3 of this Agreement. Upon the occurrence of
any event that would cause any such Shelf Registration Statement or the
Prospectus contained therein (A) to contain a material misstatement or
omission or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement,
subject to a Permitted Suspension, the Company shall file promptly an
appropriate amendment to such Shelf Registration Statement (1) in the
case of clause (A), correcting any such misstatement or omission, and
(2) in the case of either
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clause (A) or (B), use its reasonable best efforts to cause such
amendment to be declared effective and such Shelf Registration
Statement and the related Prospectus to become usable for their
intended purpose(s) as soon as practicable thereafter;
(ii) except in the event of a Permitted Suspension, prepare
and file with the Commission such amendments and post-effective
amendments to the Shelf Registration Statement as may be necessary to
keep the Shelf Registration Statement effective for the applicable
period set forth in Section 3 hereof, or such shorter period as will
terminate when all Transfer Restricted Securities covered by such Shelf
Registration Statement have been sold, cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act, and to
comply fully with Rules 424 and 430A, as applicable, under the Act in a
timely manner; and comply with the provisions of the Act with respect
to the disposition of all securities covered by such Shelf Registration
Statement during the applicable period in accordance with the intended
method or methods of distribution by the sellers thereof set forth in
such Shelf Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if required by such Persons, confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the Shelf
Registration Statement or any post-effective amendment thereto, when
the same has become effective, (B) of any request by the Commission for
amendments to the Shelf Registration Statement or amendments or
supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement under
the Act or of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering or
sale in any jurisdiction, or the initiation of any proceeding for any
of the preceding purposes, (D) of the existence of any fact or the
happening of any event that makes any statement of a material fact made
in the Shelf Registration Statement, the Prospectus, any amendment or
supplement thereto or any document incorporated by reference therein
untrue, or that requires the making of any additions to or changes in
the Shelf Registration Statement in order to make the statements
therein not misleading, or that requires the making of any additions to
or changes in the Prospectus in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Shelf Registration Statement, or
any state securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state
securities or Blue Sky laws, the Company shall use its reasonable best
efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(iv) make available to each selling Holder named in the Shelf
Registration Statement or Prospectus (and each of the underwriters in
connection with such sale, if any), before filing with the Commission,
copies of the Shelf Registration Statement or any
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Prospectus included therein or any amendments or supplements to any
such Shelf Registration Statement or Prospectus in connection with such
sale, if any, for a period of at least five Business Days, and the
Company will not file any such Shelf Registration Statement or
Prospectus or any amendment or supplement to any such Shelf
Registration Statement or Prospectus to which the selling Holders of
the Transfer Restricted Securities covered by such Shelf Registration
Statement reasonably object within five Business Days after the receipt
thereof. A selling Holder or underwriter, if any, shall be deemed to
have reasonably objected to such filing if such Shelf Registration
Statement, amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains a material misstatement or omission or
fails to comply with the applicable requirements of the Act;
(v) promptly upon the filing of any document that is to be
incorporated by reference into a Shelf Registration Statement or
Prospectus, make available copies of such document to the selling
Holders and to the underwriters in connection with such sale, if any,
and, upon the reasonable request of such Holders or underwriters, make
the Company's representatives available for discussion of such document
and other customary due diligence matters;
(vi) make available at reasonable times for inspection by any
Holder selling Transfer Restricted Securities representing at least
$15,000,000 in Liquidation Preference (a "QUALIFIED Holder"), any
underwriter participating in any disposition pursuant to such Shelf
Registration Statement and any attorney or accountant reasonably
acceptable to the Company retained by any such selling Holder or any of
such underwriters, all financial and other records, pertinent corporate
documents and properties of the Company and cause the Company's
officers, directors and employees to supply such information as may be
reasonably requested by any such Holder, underwriter, attorney or
accountant in connection with such Shelf Registration Statement or any
post-effective amendment thereto subsequent to the filing thereof and
prior to its effectiveness; PROVIDED that any Person to whom
information is provided under this clause (vi) agrees in writing to
maintain the confidentiality of such information to the extent such
information is not in the public domain;
(vii) if requested by any selling Holders or the underwriters
in connection with such sale, if any, promptly include in the Shelf
Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information of the type
that is customarily found in such documents relating to similar
securities offerings as the selling Holders and underwriters, if any,
may reasonably request to have included therein, including, without
limitation, information relating to the "PLAN OF DISTRIBUTION" of the
Transfer Restricted Securities, information with respect to the
principal amount of Transfer Restricted Securities being sold to such
underwriters, the purchase price being paid therefor and any other
terms of the offering of the Transfer Restricted Securities to be sold
in such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after the
Company is notified of the matters to be included in such Prospectus
supplement or post-effective amendment;
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(viii) furnish to each selling Holder and each of the
underwriters, if any, in connection with such sale, if any, without
charge, at least one copy of the Shelf Registration Statement, as first
filed with the Commission, and of each amendment thereto, and make
available all documents incorporated by reference therein and all
exhibits (including exhibits incorporated therein by reference);
(ix) deliver to each selling Holder and each of the
underwriters, if any, without charge, as many copies of the Prospectus
(including such preliminary prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; the Company hereby
consents to the use of the Prospectus and any amendment or supplement
thereto by each of the selling Holders and each of the underwriters, if
any, in connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or
supplement thereto;
(x) enter into such agreements (including, unless not required
pursuant to Section 9 hereof, an underwriting agreement) and make such
representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the disposition
of the Transfer Restricted Securities pursuant to the Shelf
Registration Statement as may be reasonably requested by any Qualified
Holder of Transfer Restricted Securities or underwriter in connection
with any sale or resale pursuant to the Shelf Registration Statement
contemplated by this Agreement, and in connection therewith, whether or
not an underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, the Company shall:
(A) furnish to each selling Holder and each underwriter, if
any, upon the effectiveness of the Shelf Registration
Statement:
(1) a certificate, dated the date of effectiveness of
the Shelf Registration Statement signed by (x) the President
or any Vice President and (y) the principal financial or
accounting officer of the Company, confirming with respect to
the Prospectus or any purchase or underwriting agreement and
the Transfer Restricted Securities, as of the date thereof,
the matters set forth in paragraph (c) of Section 7 of the
Purchase Agreement and such other matters as the Holders
and/or underwriters may reasonably request;
(2) an opinion, dated the date of effectiveness of
the Shelf Registration Statement, of counsel for the Company,
covering (i) due authorization and enforceability of the
Depositary Shares, the Preferred Stock and Common Stock, (ii)
a statement to the effect that such counsel has participated
in conferences with officers and other representatives of the
Company and representatives of the independent public
accountants for the Company and have considered the matters
required to be stated therein and the statements contained
therein, although such counsel has not independently verified
the accuracy, completeness or fairness of such
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statements; and that such counsel advised that, on the basis
of the foregoing (relying as to materiality to a large extent
upon the facts and information provided to such counsel by
officers and other representatives of the Company and without
independent check or verification), no facts came to such
counsel's attention that caused such counsel to believe that
the Shelf Registration Statement, at the time such Shelf
Registration Statement or any post-effective amendment thereto
became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or that the Prospectus contained in such Shelf
Registration Statement as of its date contained an untrue
statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading and (iii) such other matters of the type
customarily covered in opinions of counsel for an issuer in
connection with similar securities offerings, as may
reasonably be requested by such parties. Without limiting the
foregoing, such counsel may state further that such counsel
assumes no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of the
financial statements, notes and schedules and other financial,
statistical and accounting data included in the Shelf
Registration Statement contemplated by this Agreement or the
related Prospectus; and
(3) if the registration is a registration in which
securities of the Company are sold to an underwriter for
reoffering to the public, obtain a customary comfort letter,
dated as of the date of effectiveness of the Shelf
Registration Statement, addressed to the Board of Directors of
the Company or any underwriter from the Company's independent
accountants, in the customary form and covering matters of the
type customarily covered in comfort letters to boards of
directors in underwritten offerings;
(B) set forth in full or incorporated by reference in the
underwriting agreement, if any, in connection with any sale or
resale pursuant to the Shelf Registration Statement the
indemnification provisions and procedures of Section 7 hereof
with respect to all parties to be indemnified pursuant to said
Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance
with clause (A) above and with any customary conditions
contained in the underwriting agreement or other agreement
entered into by the Company pursuant to this clause (xi), if
any.
The above shall be done at each closing under each underwriting or
similar agreement, as and to the extent required thereunder, and if at any time
the representations and warranties of the
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Company contemplated in (A)(1) above cease to be true and correct in all
material respects, the Company shall so advise the underwriters, if any, and the
selling Holders promptly and if requested by such Persons, shall confirm such
advice in writing;
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriters, if
any, and their respective counsel in connection with the registration
and qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the selling
Holders or underwriters, if any, may request and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
Shelf Registration Statement; PROVIDED, HOWEVER, that the Company shall
not be required to register or qualify as a foreign corporation where
it is not now so qualified or to take any action that would subject it
to the service of process in suits or to taxation, other than as to
matters and transactions relating to the Shelf Registration Statement,
in any jurisdiction where it is not now so subject;
(xii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the selling Holders and the
underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Transfer Restricted Securities to be sold
and not bearing any restrictive legends; and to register such Transfer
Restricted Securities in such denominations and such names as the
Holders or the underwriters, if any, may request at least two Business
Days prior to such sale of Transfer Restricted Securities;
(xiii) use its reasonable best efforts to cause the Transfer
Restricted Securities covered by the Shelf Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof
or the underwriters, if any, to consummate the disposition of such
Transfer Restricted Securities, subject to the proviso contained in
clause (xii) above;
(xiv) if any fact or event contemplated by Section
5(b)(iii)(D) above shall exist or have occurred, except in the event of
a Permitted Suspension, prepare a supplement or post-effective
amendment to the Shelf Registration Statement or related Prospectus or
any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of
Transfer Restricted Securities, the Prospectus will not contain an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(xv) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Shelf Registration
Statement covering such Transfer Restricted Securities and provide the
Transfer Agent with printed certificates for the Transfer Restricted
Securities which are in a form eligible for deposit with the Depositary
Trust Company;
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(xvi) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation
by any underwriter (including any "QUALIFIED INDEPENDENT UNDERWRITER")
that is required to be retained in accordance with the rules and
regulations of the NASD, and use its reasonable best efforts to cause
such Shelf Registration Statement to become effective and approved by
such governmental agencies or authorities as may be necessary to enable
the Holders selling Transfer Restricted Securities to consummate the
disposition of such Transfer Restricted Securities;
(xvii) otherwise use its reasonable best efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to the Shelf
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be
audited) covering a twelve-month period beginning after the effective
date of the Shelf Registration Statement (as such term is defined in
paragraph (c) of Rule 158 under the Act);
(xviii) cause all Transfer Restricted Securities covered by
the Shelf Registration Statement to be listed on each securities
exchange on which similar securities issued by the Company are then
listed if requested by the Holders of a majority in aggregate
Liquidation Preference of Preferred Stock (and the related Depositary
Shares) or the managing underwriters, if any; and
(xix) provide promptly to each Holder, upon written request,
each document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act identified in such
request.
(c) RESTRICTIONS ON HOLDERS. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of any notice from the Company
of the existence of any fact of the kind described in Section 5(b)(iii)(D)
hereof, such Holder will forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the Shelf Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(b)(xvi) hereof, or until it is advised in writing (the
"ADVICE") by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus. If so directed by the Company, each Holder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Transfer Restricted Securities that was current at the time of
receipt of such notice. In the event the Company shall give any such notice, the
time period regarding the effectiveness of such Shelf Registration Statement set
forth in Section 3 hereof, shall be extended by the number of days during the
period from and including the date of the giving of such notice pursuant to
Section 5(b)(iii)(D) hereof to and including the date when each selling Holder
covered by such Shelf Registration Statement shall have received the copies of
the supplemented or amended Prospectus contemplated by Section 5(c)(xvi) hereof
or shall have received the Advice.
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SECTION 6. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company, regardless of whether the
Shelf Registration Statement becomes effective, including without limitation:
(i) all registration and filing fees and expenses (including filings made with
the NASD (including, if applicable, the fees and expenses, excluding
underwriting discounts or commissions, of any "QUALIFIED INDEPENDENT
UNDERWRITER" and its counsel, as may be required by the rules and regulations of
the NASD)); (ii) all fees and expenses of compliance with federal securities and
state Blue Sky or securities laws; (iii) all expenses of printing (including
printing certificates for the Depositary Shares, Preferred Stock, and Common
Stock and printing of Prospectuses), messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the Company and, in
accordance with Section 6(b) below, the Holders of Transfer Restricted
Securities; (v) all application and filing fees in connection with listing the
Depositary Shares, Preferred Stock or Common Stock on a national exchange or
automated quotation system if required hereunder; and (vi) all fees and
disbursements of independent certified public accountants of the Company
(including the expenses of any special audit and comfort letters required by or
incident to such performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
(b) In connection with the Shelf Registration Statement required by
this Agreement, the Company will reimburse the Initial Purchasers and the
Holders of Transfer Restricted Securities being registered pursuant to the Shelf
Registration Statement for the reasonable fees and disbursements of not more
than one counsel, or such other counsel as may be chosen by the Holders of a
majority in number of shares or aggregate Liquidation Preference, as the case
may be, of the Transfer Restricted Securities for whose benefit the Shelf
Registration Statement is being prepared.
SECTION 7. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless (i) each Holder,
(ii) each Person, if any, who controls a Holder within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act, and (iii) the respective
officers, directors, partners, employees, representatives and agents of any
Holder or any controlling Person to the fullest extent lawful, from and against
any and all losses, liabilities, claims, damages and expenses whatsoever
(including, but not limited to, attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
investigation or litigation, commenced or threatened, or any claim whatsoever,
and any and all amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become or are subject under the Act,
the Exchange Act or otherwise, insofar as such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Shelf Registration Statement or the Prospectus, or in any
supplement thereto or amendment thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or
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necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; PROVIDED, HOWEVER, that the Company
will not be liable in any such case to the extent, but only to the extent, that
(i) any such loss, liability, claim, damage or expense arises out of or is based
upon such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Holder expressly
for use therein, and (ii) the foregoing indemnity with respect to any untrue
statement contained in or omitted from a Shelf Registration Statement or the
Prospectus shall not inure to the benefit of any Holder (or any Person
controlling such Holder), from whom the Person asserting any such loss,
liability, claim, damage or expense purchased (or received upon conversion), any
of the Depositary Shares, Preferred Stock or Common Stock which are the subject
thereof if it is finally judicially determined that such loss, liability, claim,
damage or expense resulted solely from the fact that the Holder sold Depositary
Shares, Preferred Stock or Common Stock, to a Person to whom there was not sent
or given, at or prior to the written confirmation of such sale, a copy of the
Shelf Registration Statement and the Prospectus, as amended or supplemented, and
(x) the Company shall have previously and timely furnished sufficient copies of
the Shelf Registration Statement or Prospectus, as so amended or supplemented,
to such Holder in accordance with this Agreement and (y) the Shelf Registration
Statement or Prospectus, as so amended or supplemented, would have corrected
such untrue statement or omission of a material fact. This indemnity agreement
will be in addition to any liability which the Company may otherwise have,
including, under this Agreement.
(b) Each Holder, severally and not jointly, agrees to indemnify and
hold harmless the Company and each Person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act, against any losses, liabilities, claims, damages and expenses whatsoever
(including, but not limited to, attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
investigation or litigation, commenced or threatened, or any claim whatsoever
and any and all amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Shelf Registration Statement or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, the light of the circumstances under
which they were made, not misleading, in each case to the extent, but only to
the extent, that any such loss, liability, claim, damage or expense arises out
of or is based upon any untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Holder expressly
for use therein. This indemnity will be in addition to any liability which a
Holder may otherwise have, including, under this Agreement. In no event,
however, shall the liability of any selling Holder thereunder be greater in
amount than the dollar amount of the proceeds received by such Holder upon its
sale of the Depositary Shares, Preferred Stock or Common Stock giving rise to
such indemnification obligation.
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(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify each party against whom indemnification is
to be sought in writing of the commencement thereof (but the failure so to
notify an indemnifying party shall not relieve it from any liability which it
may have under this Section 7 except to the extent that it has been prejudiced
in any material respect by such failure or from any liability which it may
otherwise have). In case any such action is brought against any indemnified
party, and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent it
may elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel reasonably satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by the indemnifying parties in connection with the defense of such
action, (ii) the indemnifying parties shall not have employed counsel to take
charge of the defense of such action within a reasonable time after notice of
commencement of the action, or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying party or parties shall not
have the right to direct the defense of such action on behalf of the indemnified
party or parties), in any of which events such fees and expenses of counsel
shall be borne by the indemnifying parties; PROVIDED, HOWEVER, that the
indemnifying party under subsection (a) or (b) above shall only be liable for
the legal expenses of one counsel (in addition to any local counsel) for all
indemnified parties in each jurisdiction in which any claim or action is
brought. Anything in this subsection to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement of any claim or action
effected without its prior written consent, PROVIDED, HOWEVER, that such consent
was not unreasonably withheld.
(d) In order to provide for contribution in circumstances in which the
indemnification provided for in this Section 7 is for any reason held to be
unavailable from the Company or is insufficient to hold harmless a party
indemnified thereunder, the Company and each Holder shall contribute to the
aggregate losses, claims, damages, liabilities and expenses of the nature
contemplated by such indemnification provision (including any investigation,
legal or other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or claims asserted, but after
deducting in the case of losses, claims, damages, liabilities and expenses
suffered by the Company, any contribution received by the Company from Persons,
other than the Holders, who may be liable for contribution, including Persons
who control the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act) to which the Company and any Holder may be subject,
in such proportion as is appropriate to reflect the relative benefits received
by the Company from the offering of the Preferred Stock (and the related
Depositary Shares), and any such Holder from its sale of Depositary Shares,
Preferred Stock or Common Stock, or, if such allocation is not permitted by
applicable law or indemnification is not available as a result of the
indemnifying party not having received notice as provided in this Section 7, in
such proportion as is appropriate to reflect not only the relative
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benefits referred to above, but also to the relative fault of the Company and
the Holders in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and any Holder shall be deemed to be in the same proportion as (x) the total
proceeds from the offering (net of discounts but before deducting expenses) of
the Preferred Stock (and the related Depositary Shares) received by the Company
and (y) the total proceeds received by such Holder upon its sale of Depositary
Shares, Preferred Stock or Common Stock which would otherwise give rise to the
indemnification obligation. The relative fault of the Company and of the Holders
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to sate a material fact relates to information supplied by the Company or the
Holders and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each Holder agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation or by any
other method of allocation which does not take into account the equitable
considerations referred to above. Notwithstanding the provisions of this Section
7, (i) no Holder shall be required to contribute, in the aggregate, any amount
in excess of the amount by which the total received by such Holder with respect
to the sale of its Depositary Shares, Preferred Stock or Common Stock exceeds
the sum of (A) the amount paid by such Holder for such Depositary Shares,
Preferred Stock or Common Stock, plus (B) the amount of any damages which such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission and (ii) no Person guilty of
fraudulent misrepresentation (within the meaning of Section 11 of the Act) shall
be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, (A) each Person,
if any, who controls a Holder within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act and (B) the respective officer, directors,
partners, employees, representatives and agents of a Holder or any controlling
Person shall have the same rights to contribution as such Holder, and each
Person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act shall have the same rights to
contribution as the Company, subject in each case to clauses (i) and (ii) of
this Section 7(d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this Section 7, notify such party or parties from whom
contribution may be sought, but the failure to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 7 or otherwise. No party
shall be liable for contribution with respect to any action or claim settled
without its prior written consent; PROVIDED, however, that such written consent
was not unreasonably withheld.
SECTION 8. RULE 144A
The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding, to make available, upon request of any
Holder of Transfer Restricted Securities, to any Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted
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Securities designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
SECTION 9. UNDERWRITTEN REGISTRATIONS
The Holders of Transfer Restricted Securities may elect to sell their
Transfer Restricted Securities pursuant to one or more Underwritten
Registrations; PROVIDED, HOWEVER, that in no event shall any Holder commence any
such Underwritten Registration if a period of less than 180 days has elapsed
since the consummation of the most recent Underwritten Registration hereunder;
and PROVIDED FURTHER, that in no event shall the Holders effect more than three
such Underwritten Registrations hereunder; and PROVIDED FURTHER, that the
Transfer Restricted Securities to be sold pursuant to any such Underwritten
Registration must represent at least $15,000,000 in aggregate Liquidation
Preference. No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in customary underwriting arrangements entered
into in connection therewith and (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnifies, underwriting agreements,
lock-up letters and other documents required under the terms of such
underwriting arrangements.
SECTION 10. SELECTION OF UNDERWRITERS
In any Underwritten Offering, the investment banker or investment
bankers and manager or managers that will administer the offering will be
selected by the Holders of a majority of shares or aggregate Liquidation
Preference of the Transfer Restricted Securities included in such offering,
PROVIDED that such investment banker and managers must be reasonably
satisfactory to the Company. Such investment bankers and managers are referred
to herein as the "UNDERWRITERS."
SECTION 11. MISCELLANEOUS
(a) REMEDIES. Each Holder, in addition to being entitled to exercise
all rights provided herein, in the Certificate of Designations, the Purchase
Agreement or granted by law, including recovery of liquidated or other damages,
will be entitled to specific performance of its rights under this Agreement. The
Company agrees that monetary damages (including the Liquidated Damages
contemplated hereby) would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agrees
to waive the defense in any action for specific performance that a remedy at law
would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company will not on or after the
date of this Agreement enter into any agreement with respect to its securities
that conflicts with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's securities under any
agreement in effect
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on the date hereof, except where a waiver with respect thereto has been obtained
prior to the date of effectiveness of any registration statement required under
this Agreement.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the shares or the outstanding
Liquidation Preference of Transfer Restricted Securities.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telecopier, or air courier
guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Transfer Agent with a copy to the Transfer Agent; and,
(ii) if to the Company:
Sensormatic Electronic Corporation
000 Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000-0000
Attn: Treasurer
Telecopier Number: 561/989-7215
With a copy to:
Xxxxxxx & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telecopier Number: 212/632-5555
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed, when receipt 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 Transfer Agent at
the address specified in the Certificate of Designations.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including, without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities;
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PROVIDED, HOWEVER, that this Agreement shall not inure to the benefit of or be
binding upon a successor assign of a Holder unless and to the extent such
successor or assign acquired Transfer Restricted Securities directly from such
Holder.
(f) 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.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(i) SEVERABILITY. In the event that any 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.
(j) ENTIRE AGREEMENT. This Agreement, together with the other Operative
Documents (as defined in the Purchase Agreement) is intended by the parties as a
final expression of their agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with
respect to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
* * *
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
COMPANY:
SENSORMATIC ELECTRONICS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------
Title: Senior Vice President and
Chief Financial Officer
------------------------------
[Countersignature Follows]
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INITIAL PURCHASERS:
BEAR, XXXXXXX & CO. INC.
XXXXXX BROTHERS INC.
NATIONSBANC XXXXXXXXXX
SECURITIES LLC
XXXXXXXX & CO. INC.
By: BEAR, XXXXXXX & CO. INC.,
as representative for the Initial
Purchasers
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
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