EXECUTION COPY
Exhibit 10.2
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REGISTRATION RIGHTS AGREEMENT
Dated as of December 21, 2001
among
Veeco Instruments Inc.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. and
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is made and
entered into this 21st day of December, 2001, among Veeco Instruments Inc., a
Delaware corporation (the "COMPANY"), ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC (each, an
"INITIAL PURCHASER," and collectively, the "INITIAL PURCHASERS").
This Agreement is made pursuant to that certain Purchase Agreement,
dated December 18, 2001, among the Company and the Initial Purchasers (the
"PURCHASE AGREEMENT"), which provides for the sale by the Company to the
Initial Purchasers of up to an aggregate of $220,000,000 principal amount of
the Company's 4 1/8% Convertible Subordinated Notes due 2008 (the "Notes"),
including $20,000,000 aggregate principal amount of Notes as to which the
Initial Purchasers have an over-allotment option as set forth in Section 2(b)
of the Purchase Agreement. In order to induce the Initial Purchasers to enter
into the Purchase Agreement and in satisfaction of a condition to the Initial
Purchasers' obligations thereunder, the Company has agreed to provide to the
Initial Purchasers and their direct and indirect transferees and assigns the
registration rights set forth in this Agreement. The execution and delivery
of this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 ACT" shall mean the Securities Act of 1933, as amended from time
to time, and the rules and regulations of the SEC promulgated thereunder.
"1934 ACT" shall mean the Securities Exchange Act of l934, as amended
from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"ADDITIONAL INTEREST" shall have the meaning set forth in Section 2.4
hereof.
"CLOSING DATE" shall mean the Closing Time as defined in the Purchase
Agreement.
"COMMON STOCK" shall mean common stock, $0.01 par value per share, of
the Company.
"COMPANY" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors.
"DEPOSITARY" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that any such depositary
must have an address in The Borough of Manhattan, The City of New York.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in Section
2.1(a) hereof.
"EFFECTIVENESS TARGET DATE" shall mean the one hundred eightieth
(180th) day after the Closing Date.
"EVENT DATE" shall have the meaning set forth in Section 2.4 hereof.
"FILING DATE" shall mean the ninetieth (90th) day after the Closing
Date.
"HOLDER" shall mean an Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture.
"HOLDER EXPENSES" shall have the meaning set forth in Section 2.2,
together with underwriting discounts and commissions and any transfer taxes
relating to the sale or distribution of Registrable Securities by a Holder.
"INDENTURE" shall mean the Indenture relating to the Securities, dated
as of December 21, 2001, between the Company and State Street Bank and Trust
Company, N.A., as trustee, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof.
"INITIAL PURCHASER" or "INITIAL PURCHASERS" shall have the meaning set
forth in the preamble to this Agreement.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate principal amount of Registrable Securities outstanding; provided, that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by the
Company or any of its affiliates (as such term is defined in Rule 405 under the
▇▇▇▇ ▇▇▇) shall be disregarded in determining whether such consent or approval
was given by the Holders of such required percentage.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"NOTES" shall have the meaning set forth in the preamble to this
Agreement.
"PERSON" shall mean an individual, partnership, corporation, limited
liability company, joint venture, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in any Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement, and all other amendments and supplements to any such
prospectus, including post-effective amendments, and in each case including all
material incorporated or deemed to be incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble
to this Agreement.
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"REGISTRABLE SECURITIES" shall mean the Notes and the shares of Common
Stock into which the Notes are convertible, upon original issuance of the Notes,
and at all times subsequent thereto; provided, however, that any Securities
shall cease to be Registrable Securities when (i) a Registration Statement with
respect to such Securities shall have been declared effective under the 1933 Act
and such Securities shall have been disposed of pursuant to such Registration
Statement, (ii) such Securities shall have been sold to the public pursuant to
Rule l44 (or any similar provision then in force, but not Rule 144A) under the
1933 Act, or (iii) such Securities shall have ceased to be outstanding.
"REGISTRATION DEFAULT" shall have the meaning set forth in Section 2.4
hereof.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or NASD registration and filing
fees, (ii) all fees and expenses incurred in connection with compliance with
state or other securities or blue sky laws and compliance with the rules of the
NASD (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with qualification of any Registrable
Securities under state or other securities or blue sky laws and any filing with
and review by the NASD), (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus, any amendments or supplements thereto,
any underwriting agreements, securities sales agreements, certificates
representing the Securities and other documents relating to the performance of
and compliance with this Agreement, (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Securities on any
securities exchange or exchanges or on any quotation system, (v) all rating
agency fees, (vi) all fees and disbursements relating to the qualification of
the Indenture under applicable securities laws, (vii) the fees and disbursements
of counsel for the Company and the fees and expenses of independent public
accountants for the Company or for any other Person, business or assets whose
financial statements are included in any Registration Statement or Prospectus,
including the expenses of any special audits or "cold comfort" letters required
by or incident to such performance and compliance, (viii) the fees and expenses
of a "qualified independent underwriter" as defined by Conduct Rule 2720 of the
NASD (if required by the NASD rules) and the fees and disbursements of its
counsel, (ix) the fees and expenses of the Trustee, any registrar, any
depositary, any paying agent, any escrow agent or any custodian, in each case
including their respective counsel, (x) the reasonable fees and disbursements of
one law firm representing the Holders of Registrable Securities and (xi) the
reasonable fees and expenses of the Initial Purchasers in connection with the
Shelf Registration, including the reasonable fees and expenses of one counsel to
the Initial Purchasers, and (xii) any fees and disbursements of the underwriters
customarily paid by issuers or sellers of securities and the fees and expenses
of any special experts retained by the Company in connection with any
Registration Statement, but excluding underwriting discounts and commissions and
any transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
"REGISTRATION STATEMENT" shall mean the registration statement of the
Company filed with the SEC pursuant to the provisions of Section 2 of this
Agreement that covers all of the Registrable Securities on an appropriate form
under Rule 415 under the 1933 Act, or any similar rule that may be adopted by
the SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained
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therein, all exhibits thereto and all material incorporated or deemed to be
incorporated by reference therein. If the Company elects in its sole discretion
to file one or more additional registration statements to comply with its
obligations under this Agreement, then the term "Registration Statement" shall
include such additional registration statement(s).
"REQUISITE INFORMATION" shall have the meaning set forth in Section
2.1(c) hereof.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency or government body performing the functions currently performed
by the United States Securities and Exchange Commission.
"SECURITIES" shall mean the Notes and the shares of Common Stock into
which the Notes are convertible, upon original issuance thereof and at all times
subsequent thereto.
"SHELF REGISTRATION" shall have the meaning set forth in Section 2.1(a)
hereof.
"TIA" shall mean the Trust Indenture Act of 1939, as amended from time
to time, and the rules and regulations of the SEC promulgated thereunder.
"TRUSTEE" shall mean the trustee with respect to the Securities under
the Indenture.
"UNDERWRITERS" shall have the meaning set forth in Section 4(a) hereof.
For purposes of this Agreement, (i) all references in this Agreement to
any Registration Statement or Prospectus or any amendment or supplement to any
of the foregoing shall be deemed to include the copy filed with the SEC pursuant
to its Electronic Data Gathering, Analysis and Retrieval system; (ii) all
references in this Agreement to financial statements and schedules and other
information which is "contained", "included" or "stated" in any Registration
Statement or Prospectus (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which is incorporated or deemed to be incorporated by reference in
such Registration Statement or Prospectus, as the case may be; and (iii) all
references in this Agreement to amendments or supplements to any Registration
Statement or Prospectus shall be deemed to mean and include the filing of any
document under the 1934 Act which is incorporated or deemed to be incorporated
by reference in such Registration Statement or Prospectus, as the case may be.
"UNDERWRITTEN OFFERING" shall have the meaning set forth in Section
3(m)(ii) hereof.
2. REGISTRATION UNDER THE 1933 ACT.
2.1. SHELF REGISTRATION.
(a) As promptly as practicable, but no later than the Filing Date, the
Company shall file with the SEC, a Registration Statement for an offering to be
made on a continuous basis pursuant to Rule 415 under the 1933 Act covering all
of the Registrable Securities (the "SHELF REGISTRATION"). The Shelf Registration
shall be on Form S-3 under the 1933 Act or another appropriate form permitting
registration of such Registrable Securities for resale by the Holders in the
manner or manners reasonably designated by them (including, without limitation,
the
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Underwritten Offering). The Company shall use its best efforts to cause the
Registration Statement to be declared effective by the SEC as promptly as
practicable, but no later than the Effectiveness Target Date, and to keep such
Registration Statement continuously effective, supplemented and amended as
required, in order to permit the Prospectus forming a part thereof to be useable
by the Holders until the earliest of (i) the date that is two years after the
last date of original issuance of any of the Notes and (ii) all of the
Registrable Securities covered by the Registration Statement have been sold
pursuant to the Registration Statement (the "EFFECTIVENESS PERIOD"); provided,
however, that the Effectiveness Period in respect of the Registration Statement
shall be extended to the extent required to permit dealers to comply with the
applicable prospectus delivery requirements of Rule 174 under the 1933 Act and
as otherwise provided herein.
(b) Notwithstanding any other provisions hereof, the Company shall use
its best efforts to ensure that (i) the Registration Statement and any amendment
thereto and any Prospectus forming a part thereof and any supplements thereto
complies in all material respects with the 1933 Act, (ii) the Registration
Statement and any amendment thereto does not, when it becomes effective, contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
and (iii) any Prospectus forming a part of the Registration Statement and any
amendment or supplement to such Prospectus, does not include an untrue statement
of a material fact or omit 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.
(c) SELLING SECURITYHOLDER INFORMATION. Each Holder wishing to sell
Registrable Securities pursuant to the Registration Statement and related
Prospectus agrees to deliver a Notice and Questionnaire that confirms such
Holder's agreement to be bound by the terms of this Agreement and includes such
information regarding it and the distribution of its Registrable Securities as
is required by law to be disclosed by the Holder in the Registration Statement
(the "Requisite Information"), together with such other information as the
Company may reasonably request (the Requisite Information, together with such
other information, the "Holder Information"), to the Company at least five
business days prior to the effectiveness of the Registration Statement. The
Company shall not be required to include in the Registration Statement and
related Prospectus the Registrable Securities of any Holder that does not
provide the Company with the Holder Information in accordance with this Section
2(c). After the effectiveness of the Registration Statement, the Company shall
file with the SEC, within five business days after the receipt of the Holder
Information from any Holder after the date five days prior to the effectiveness
of the Registration Statement, a Prospectus supplement pursuant to Rule 424 or
otherwise amend or supplement such Registration Statement to include in the
Prospectus the Requisite Information as to such Holder (and the Registrable
Securities held by such Holder), shall take all reasonable action and perform
all reasonable acts to ensure that the SEC declares any amendment effective as
soon as possible after the filing thereof and the Company shall provide such
Holder not later than seven business days after receipt of such Requisite
Information with a copy of such Prospectus as so amended or supplemented
containing the Requisite Information in order to permit such Holder to comply
with the prospectus delivery requirements of the Securities Act in a timely
manner with respect to any proposed disposition of such Holder's Registrable
Securities, provided, that no amended or supplemented Prospectus may be used by
the Holder until any amendment to the Registration Statement is declared
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effective if required by the Securities Act. Each Holder shall promptly notify
the Company of any material changes to the Requisite Information contained in
the Notice and Questionnaire provided to the Company by such Holder. If the
Company shall fail to file the appropriate supplement or amendment within five
business days of receipt of such notice, the Company shall pay the Holder
additional interest in the manner set forth in Section 2.4. If any such
Registration Statement refers to any Holder by name or otherwise as the holder
of any securities of the Company, then such Holder shall have the right to
require, in the event that such reference to such Holder by name or otherwise is
not required by the Securities Act or any similar successor Federal statute then
in force, the deletion of the reference to such Holder in such Registration
Statement at any time subsequent to the time that such reference ceases to be
required.
(d) The Company further agrees, if necessary, to supplement or amend
the Registration Statement, as required by Section 3(b) below, and to furnish to
the Holders of Registrable Securities included in the Registration Statement
copies of any such supplement or amendment promptly after its being filed with
the SEC.
2.2. EXPENSES. The Company shall pay all Registration Expenses in
connection with the Shelf Registration, but specifically excluding the
Registration Expenses identified in clauses (viii), (x), (xi) and (xii) and in
the parenthetical included in clause (ii) and expenses relating to underwriting
agreements and securities sales agreements (together, "Holder Expenses"). Each
Holder shall pay all Holder Expenses applicable to it individually and such
Holder's ratable portion of Holder Expenses applicable to all Holders
participating in the Underwritten Offering.
2.3. EFFECTIVENESS.
(a) The Company shall be deemed not to have used its best efforts to
cause the Registration Statement to become, or to remain, effective during the
requisite period set forth herein if the Company voluntarily takes any action
that would, or omits to take any action which omission would result in any such
Registration Statement not being declared effective or remaining effective, or
in the Holders of Registrable Securities covered thereby not being able to offer
and sell such Registrable Securities during that period as and to the extent
contemplated hereby, unless such action is required by applicable law.
(b) The Registration Statement shall not be deemed to have become
effective unless it has been declared effective by the SEC; provided, however,
that if, after it has been declared effective, the offering of Registrable
Securities pursuant to the Registration Statement is interfered with by any stop
order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement shall be deemed not to
have been effective during the period of such interference, until the offering
of Registrable Securities pursuant to such Registration Statement may legally
resume.
2.4. INTEREST. In the event that (a) the Registration Statement has not
been filed with the SEC on or prior to the Filing Date, (b) the Registration
Statement is not declared effective by the SEC on or prior to the Effectiveness
Target Date, (c) the Registration Statement has been declared effective by the
SEC and such Registration Statement ceases to be effective or usable at any time
during the Effectiveness Period for any reason without being succeeded within
five
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business days by a post-effective amendment to such Registration Statement or a
report filed with the SEC pursuant to the 1934 Act that cures such failure or
(d) the Company suspends the use of any Prospectus related to the Registration
Statement for a period exceeding forty-five (45) days in any consecutive
three-month period or exceeding an aggregate of one hundred twenty (120) days in
any consecutive twelve-month period (each such event referred to in clauses (a)
through (d) above, a "REGISTRATION DEFAULT"), then the interest rate borne by
the Notes shall be increased ("ADDITIONAL INTEREST") by one quarter of one
percent (0.25%) per annum upon the occurrence of each Registration Default,
which rate will increase by an additional one quarter of one percent (0.25%)
from and after the ninety-first (91st) day following the occurrence of such
Registration Default, provided that the Additional Interest rate will in no
event exceed one half of one percent (0.50%) per annum, in each case for so long
as such Registration Default continues. Concurrent Registration Defaults shall
be deemed to be a single registration default. Additional Interest will accrue
from and including the day following the Registration Default to but excluding
the day on which the Registration Default has been cured. Upon the cure of such
Registration Default, the accrual of Additional Interest will cease and the
interest rate will revert to the original rate so long as no other Registration
Default shall have occurred and shall be continuing at such time; provided,
however, that, if after any such reduction in interest rate, one or more
Registration Defaults shall again occur, Additional Interest shall again be
payable pursuant to the foregoing provisions. A Registration Default under
clause (a) above shall be cured on the date that the Shelf Registration is filed
with the SEC; a Registration Default under clause (b) above shall be cured on
the date that the Shelf Registration is declared effective by the SEC; a
Registration Default under clause (c) above shall be cured on the date the Shelf
Registration is declared effective or useable; and a Registration Default under
clause (d) above shall be cured on the date the Prospectus is declared useable
by the Company.
The Company is permitted to suspend the use of any Prospectus
related to the Registration Statement for any period and at any time, provided,
that it is required to pay Additional Interest if the suspension results in a
Registration Default. As part of the periods set forth in clause (d) above, the
Company, at its option, may establish regular suspension periods corresponding
to its fiscal quarters. If the Company establishes such suspensions, the Company
shall give notice to the trustee under the Indenture of such regular
suspensions, to be forwarded to the Holders, and shall request such trustee to
give periodic notice of the suspension to the Holders.
A Holder will not be entitled to Additional Interest:
(i) on account of a Registration Default described in clause
(b) above if it has not provided all Requisite Information to the
Company at least five business days prior to the effectiveness of the
Registration Statement;
(ii) on account of a Registration Default described in clauses
(c) and (d) above with respect to any of its Registrable Securities
that are not registered on the Registration Statement during the period
of a Registration Default, provided, that from the sixth business day
following the Company's receipt of such Holder's Holder Information,
such Holder shall be entitled to Additional Interest on account of such
Registration Default; and
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(iii) if such Holder purchased such Notes or Common Stock in
transactions covered by the Registration Statement or previously sold
in transactions exempt from the registration requirements of the
Securities Act in accordance with Rule 144.
The Company shall not be deemed to have failed to use its best
efforts, as required by Section 2.3(a), and there shall not be deemed to be a
Registration Default, if the sole reason for the failure to have an effective
Registration Statement or the related Prospectus is not useable is the inclusion
therein of the Requisite Information of a Holder. If the Company determines that
the Registration Statement must be revised in order to obtain or continue
effectiveness, to have a stop order, injunction or other order lifted or to have
the Prospectus useable, the Company shall promptly give notice to the subject
Holder and, if the Company and the Holder are not able to agree to the necessary
amendment to the Registration Statement or amendment or supplement to the
related Prospectus within five business days of the notice to the Holder, the
Company may make any revision it deems necessary to obtain effectiveness, to
have the order lifted or to make the Prospectus useable, including, without
limitation, removing the Holder's Registrable Securities from the Registration
Statement.
The Company shall notify the Trustee within three business
days after each and every date on which a Registration Default occurs (an "EVENT
DATE"). Additional Interest shall be paid by the Company to the Holders by
depositing with the Trustee, in trust, for the benefit of the Holders of
Registrable Securities, on or before the applicable semiannual interest payment
date, immediately available funds in sums sufficient to pay the Additional
Interest then due. The Additional Interest due shall be payable on each interest
payment date to the record Holder of Securities entitled to receive the interest
payment to be paid on such date as set forth in the Indenture.
2.5. SPECIFIC ENFORCEMENT. Without limiting the remedies
available to the Initial Purchasers and the Holders, the Company acknowledges
that any failure by the Company to comply with its obligations under this
Section 2 may result in material irreparable injury to the Initial Purchasers
or the Holders for which there is no adequate remedy at law, that it would
not be possible to measure damages for such injuries precisely and that, in
the event of any such failure, the Initial Purchasers or any Holder may
obtain such relief as may be required to specifically enforce the Company's
obligations under this Section 2.
3. REGISTRATION PROCEDURES.
In connection with the obligations of the Company with respect to the
Shelf Registration and the Registration Statement pursuant to Section 2 hereof,
the Company shall:
(a) prepare and file with the SEC a Registration Statement
within the period specified in Section 2, on the appropriate form under
the 1933 Act, which form (i) shall be selected by the Company, (ii)
shall be available for the sale of the Registrable Securities by the
selling Holders thereof (provided that such Holder completes and
delivers its Holder Information to the Company at least five business
days prior to the effectiveness of the Registration Statement) , and
(iii) shall comply as to form in all material respects with the
requirements of the applicable form and include or incorporate by
reference all financial statements required by the SEC to be filed
therewith or
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incorporated by reference therein, and use its best efforts to cause
such Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
effective for the applicable period; cause each Prospectus to be
supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provision
then in force) under the 1933 Act; and comply with the provisions of
the 1933 Act and the 1934 Act with respect to the disposition of all
securities covered by a Registration Statement during the applicable
period in accordance with the intended method or methods of
distribution by the selling Holders thereof;
(c) (i) notify each Holder of Registrable Securities that a
Registration Statement with respect to the Registrable Securities has
been filed, further notify each Holder of Registrable Securities, at
least fifteen business days prior to effectiveness, that such
Registration Statement will become effective and request that such
Holder complete and deliver the Holder Information to the Company at
least five business days prior to effectiveness and advising such
Holders that the distribution of Registrable Securities will be made in
accordance with the method elected by the Majority Holders that deliver
Holder Information in time to be included in the Registration
Statement; (ii) subject to the Holder's requirements to pay all Holder
Expenses, furnish to each Holder of Registrable Securities, to counsel
for the Holders, to counsel for the Initial Purchasers and to each
underwriter of the Underwritten Offering of Registrable Securities, if
any, without charge subject to the Holder's requirements to pay all
Holder Expenses, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and
such other documents as such Holder, counsel or underwriter may
reasonably request, including financial statements and schedules and,
if such Holder, counsel or underwriter so requests, all exhibits
(including those incorporated by reference) in order to facilitate the
public sale or other disposition of the Registrable Securities; and
(iii) the Company hereby consents to the use of the Prospectus,
including each preliminary Prospectus, or any amendment or supplement
thereto by each of the Holders and underwriters of Registrable
Securities in connection with the offering and sale of the Registrable
Securities covered by any Prospectus or any amendment or supplement
thereto;
(d) use its best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue
sky" laws of such jurisdictions in the United States as any Holder of
Registrable Securities covered by the Registration Statement and each
underwriter of the Underwritten Offering of Registrable Securities
shall reasonably request, to cooperate with the Holders and the
underwriters of any Registrable Securities in connection with any
filings required to be made with the NASD, to keep each such
registration or qualification effective during the period such
Registration Statement is required to be effective, and do any and all
other acts and things which may be reasonably necessary or advisable to
enable such Holder to consummate the disposition in each such U.S.
jurisdiction of such Registrable Securities owned by such Holder;
provided, however, that the Company shall not be required to (i)
qualify as a foreign
9
corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required to qualify but for this Section 3(d) or
(ii) take any action which would subject it to general service of
process or taxation in any such jurisdiction if it is not then so
subject;
(e) notify each Holder of Registrable Securities and counsel
for such Holder (if known to the Company) promptly and, if requested by
such Holder or counsel, confirm such advice in writing promptly (i)
when a Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective,
(ii) of any request by the SEC or any state securities authority for
post-effective amendments or supplements to a Registration Statement or
Prospectus or for additional information with respect to the
Registration Statement after a Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) if between the effective date of the Registration
Statement and the closing of any sale of Registrable Securities covered
thereby, PROVIDED, the Company knows when the sale is to occur, the
representations and warranties of the Company contained in any
underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to such offering cease to be true and
correct in all material respects, (v) of the happening of any event as
a result of which the Prospectus, as then in effect, makes any
statement made in such Registration Statement or the related Prospectus
untrue in any material respect or which constitutes an omission to
state a material fact in such Registration Statement or Prospectus or
which requires the making of any changes in such Registration Statement
or Prospectus in order to make the statements therein not misleading in
light of the circumstances then existing, (vi) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose and (vii) of any determination by the Company that a
post-effective amendment to a Registration Statement would be
appropriate;
(f) in the event of an underwritten offering, furnish counsel
for any underwriters of Registrable Securities copies of any comment
letters received from the SEC or any other request by the SEC or any
state securities authority for amendments or supplements to a
Registration Statement and Prospectus or for additional information
received during the occurrence of the underwritten offering;
(g) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement as
soon as practicable and provide immediate notice to each selling Holder
of the withdrawal of any such order;
(h) furnish to each selling Holder of Registrable Securities,
and each underwriter, if any, without charge, at least one conformed
copy of each Registration Statement and any post-effective amendment
thereto, including financial statements and schedules (without
documents incorporated or deemed to be incorporated therein by
reference or exhibits thereto, unless requested);
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(i) cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and cause such Registrable Securities
to be in such denominations (consistent with the provisions of the
Indenture) and in a form eligible for deposit with the Depositary and
registered in such names as the selling Holders or the underwriters, if
any, may reasonably request in writing at least three business days
prior to the closing of any sale of Registrable Securities;
(j) upon the occurrence of any event or the discovery of any
facts, each as contemplated by Sections 3(e)(v) and 3(e)(vi) hereof, as
promptly as practicable after the occurrence of such an event, use its
best efforts to prepare a supplement or post-effective amendment to a
Registration Statement or the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not
contain at the time of such delivery any untrue statement of a material
fact or omit 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. The Company agrees to notify each Holder to
suspend use of the Prospectus as promptly as practicable after the
occurrence of such an event, and each Holder hereby agrees to suspend
use of the Prospectus until the Company has amended or supplemented the
Prospectus to correct such misstatement or omission. At such time as
such public disclosure is otherwise made or the Company determines that
such disclosure is not necessary, in each case to correct any
misstatement of a material fact or to include any omitted material
fact, the Company agrees promptly to notify each Holder of such
determination and to furnish each Holder such number of copies of the
Prospectus, as amended or supplemented, as such Holder may reasonably
request;
(k) obtain CUSIP numbers for all Registrable Securities not
later than the effective date of the Registration Statement, and
provide the Trustee with printed certificates for the Registrable
Securities in a form eligible for deposit with the Depositary;
(l) (i) cause the Indenture to be qualified under the TIA in
connection with the registration of the Registrable Securities, (ii)
cooperate with the Trustee and the Holders to effect such changes, if
any, to the Indenture as may be required for the Indenture to be so
qualified in accordance with the terms of the TIA and (iii) execute,
and use its best efforts to cause the Trustee to execute, all documents
as may be required to effect such changes, if any, and all other forms
and documents required to be filed with the SEC to enable the Indenture
to be so qualified in a timely manner;
(m) in connection with not more than one Underwritten Offering
during the period of effectiveness of the Registration Statement (the
"Underwritten Offering") enter into an underwriting agreement and
agreements ancillary thereto and take all other customary and
appropriate actions in order to expedite or facilitate the disposition
of such Registrable Securities and in such connection;
11
(i) make such representations and warranties to the
Holders of such Registrable Securities and the underwriters,
if any, in form, substance and scope as are customarily made
by issuers to underwriters in similar Underwritten Offerings
as may be reasonably requested by such Holders and
underwriters;
(ii) in connection with the Underwritten Offering,
seek to obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriters, if any, and the Holders of a majority in
principal amount of the Registrable Securities being sold)
addressed to each selling Holder (where reasonably possible)
and the underwriters, if any, covering the matters customarily
covered in opinions requested in sales of securities or
Underwritten Offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
(iii) in connection with the Underwritten Offering,
seek to obtain "comfort letters" and updates thereof with
respect to such Registration Statement and the Prospectus
included therein, all amendments and supplements thereto and
all documents incorporated or deemed to be incorporated by
referenced therein from the Company's independent certified
public accountants and (where reasonably possible) from the
independent certified public accountants for any other Person
or any business or assets whose financial statements are
included or incorporated by reference in the Registration
Statement or Prospectus, each addressed to the underwriters,
if any, and (where reasonably possible) to have such letter
addressed to the selling Holders of Registrable Securities,
such letters to be in customary form and covering matters of
the type customarily covered in "comfort letters" to
underwriters in connection with similar Underwritten
Offerings;
(iv) if an underwriting agreement is entered into in
the case of the Underwritten Offering, cause the same to set
forth indemnification and contribution provisions and
procedures substantially equivalent to the indemnification and
contribution provisions and procedures set forth in Section 4
hereof with respect to the underwriters and all other parties
to be indemnified pursuant to Section 4 hereof or, at the
request of any underwriters, in the form customarily provided
to such underwriters in similar types of transactions; and
(v) deliver such other documents and certificates as
may be reasonably requested and as are customarily delivered
in similar offerings to the Holders of a majority in principal
amount of the Registrable Securities being sold and the
managing underwriters, if any.
The above shall be done at (i) the effectiveness of any required
post-effective amendment to the Registration Statement and (ii) the closing
under the underwriting agreement as and to the extent required thereunder;
12
(n) to the extent required to enable the Holders and the
underwriters to comply with their due diligence obligations, make
available for inspection by representatives of the Holders of the
Registrable Securities and any underwriters participating in any
disposition pursuant to a Registration Statement and any counsel or
accountant retained by such Holders or underwriters, all financial and
other records, documents and properties of the Company reasonably
requested by any such Persons, and cause the respective officers,
directors, employees, and any other agents of the Company to supply all
information reasonably requested by any such representative,
underwriter, special counsel or accountant in connection with the
Registration Statement, and make such representatives of the Company
available for discussion of such documents as shall be reasonably
requested by the Initial Purchasers, PROVIDED, that such persons (other
than the Initial Purchasers) enter into appropriate confidentiality
agreements with the Company;
(o) a reasonable time prior to filing any amendment to the
Registration Statement or amendment or supplement to such Prospectus in
connection with an Underwritten Offering, provide copies of such
document upon request to the underwriter or underwriters of the
Underwritten Offering of Registrable Securities, if any, and to counsel
for any such underwriters, and make such changes in any such document
prior to the filing thereof as the underwriter or underwriters or any
of their respective counsel may reasonably request, provided that the
Company shall have no obligation to make any change in the description
of its business or its financial statements or other information
contained in its Exchange Act filings; cause the representatives of the
Company to be available for discussion of such documents as shall be
reasonably requested by any underwriter; and shall not at any time make
any filing of any such document of which such underwriter shall not
have previously been advised and furnished a copy or to which the
underwriter shall reasonably object within a reasonable time period;
(p) otherwise comply with all applicable rules and regulations
of the SEC and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering at least twelve
(12) months which shall satisfy the provisions of Section 11(a) of the
1933 Act and Rule 158 thereunder; and
(q) 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 and its counsel (including any "qualified
independent underwriter" that is required to be retained in accordance
with the rules and regulations of the NASD).
The Company may (as a condition to such Holder's participation in the
Shelf Registration) require each Holder of Registrable Securities to furnish to
the Company such information regarding such Holder and the proposed distribution
by such Holder of such Registrable Securities as the Company may from time to
time reasonably request in writing, including the completion and delivery of the
Requisite Information at least five days prior to the effectiveness of the
Registration Statement.
13
Each Holder agrees that, upon receipt of any notice from the Company of
the happening of any event or the discovery of any facts, each of the kind
described in Sections 3(e)(ii), 3(e)(iii) or 3(e)(v) through 3(e)(vii) hereof,
such Holder will forthwith discontinue disposition of Registrable Securities
pursuant to a Registration Statement until receipt by such Holder of (i) the
copies of the supplemented or amended Prospectus contemplated by Section 3(j)
hereof or (ii) written notice from the Company that the Shelf Registration is
once again effective or that no supplement or amendment is required. If so
directed by the Company, such Holder will deliver to the Company (at the
Company's expense) all copies in such Holder's possession, other than permanent
file copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice. Nothing in
this paragraph shall prevent that accrual of Additional Interest on any
Securities.
In the event that the Company fails to file any Registration Statement
and maintain the effectiveness of any such Registration Statement as provided
herein, the Company shall not file any Registration Statement with respect to
any securities (within the meaning of Section 2(1) of the ▇▇▇▇ ▇▇▇) of the
Company other than Registrable Securities.
If any of the Registrable Securities covered by any Registration
Statement are to be sold in the Underwritten Offering, the underwriter or
underwriters and manager or managers that will manage such offering will be
selected by the Majority Holders of such Registrable Securities included in such
offering and shall be reasonably acceptable to the Company. No Holder of
Registrable Securities may participate in any underwritten registration
hereunder unless such Holder (a) agrees to sell such Holder's Registrable
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
The Holders of Registrable Securities that participate in the
Underwritten Offering shall be required to pay on a ratable basis all
Registration Expenses associated with or arising as a result of the Underwritten
Offering, including, without limitation, any Registration Expenses incurred in
connection with any amendment to the Registration Statement or amendment or
supplement to the related Prospectus requested or required by the underwriter.
4. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless the Initial
Purchasers, each Holder, each Person who participates as an underwriter (each,
an "UNDERWRITER") and each Person, if any, who controls any Initial Purchaser,
Holder or Underwriter within the meaning of either Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment or supplement thereto)
pursuant to which Registrable Securities were registered under the 1933
Act, including all documents incorporated therein by reference, or any
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the
14
statements therein not misleading, or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
any Prospectus (or any amendment or supplement thereto) or any omission
or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 4(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by
any indemnified party), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under subparagraph (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Initial Purchasers, any Holder or Underwriter expressly for use in a
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto).
(b) Each Holder, severally but not jointly, agrees to indemnify and
hold harmless the Company, the Initial Purchasers, each Underwriter and the
other selling Holders, and each of their respective directors and officers, and
each Person, if any, who controls the Company, the Initial Purchasers, any
Underwriter or any other selling Holder within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in Section 4(a)
hereof, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or any Prospectus included therein (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
with respect to such Holder furnished to the Company by such Holder expressly
for use in the Registration Statement (or any amendment thereto) or such
Prospectus (or any amendment or supplement thereto); provided, however, that no
such Holder shall be liable for any claims hereunder in excess of the amount of
net proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Registration Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action or proceeding commenced
against it in respect of which indemnity may be sought hereunder, but failure so
to notify an indemnifying party shall not
15
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense in
the defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party)
also be counsel to the indemnified party. In no event shall the indemnifying
party or parties be liable for the fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 4 (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than forty-five (45)
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least thirty (30) days prior to such settlement being entered into
and (iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 4 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect
the relative fault of the indemnifying party or parties on the one hand and of
the indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative fault of such indemnifying party or parties on the one
hand and the indemnified party or parties on the other hand shall be determined
by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by such indemnifying party or parties or
such indemnified party or parties, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(f) The Company, the Holders and the Initial Purchasers agree that it
would not be just or equitable if contribution pursuant to this Section 4 were
determined by pro rata allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other
16
method of allocation that does not take account of the equitable considerations
referred to in paragraph (e) above. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to
above in this Section 4 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 4, no Initial Purchaser,
Holder or Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which Registrable Securities sold by it
pursuant to a Registration Statement were offered exceeds the amount of any
damages that such Initial Purchaser, Holder or Underwriter has otherwise been
required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission.
No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who controls an
Initial Purchaser, Holder or Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Initial Purchaser, Holder or Underwriter, as the case may
be, and each director of the Company, each officer of the Company who signed the
Registration Statement and each Person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The respective obligations
of the Initial Purchasers, Holders, and Underwriters to contribute pursuant to
this Section 4 are several in proportion to the principal amount of Securities
sold by them pursuant to a Registration Statement and not joint.
The indemnity and contribution provisions contained in this Section 4
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Initial Purchaser, Holder or Underwriter or any Person controlling any
Initial Purchaser, Holder or Underwriter, or by or on behalf of the Company, its
officers, or directors or any Person controlling the Company, and (iii) any sale
of Registrable Securities pursuant to a Registration Statement.
5. MISCELLANEOUS.
5.1. RULE 144 AND RULE 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the 1934 Act, the Company
covenants that it will file all reports required to be filed by it under the
1933 Act and Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder, that if it ceases to be so required
to file such reports, it will upon the request of any Holder or beneficial owner
of Registrable Securities (a) make publicly available such information
(including, without limitation, the information specified in Rule 144A(d)(4)
under the ▇▇▇▇ ▇▇▇) as is necessary to permit sales pursuant to Rule 144 under
the 1933 Act, (b) deliver or cause to be delivered, promptly following a request
by any Holder or beneficial owner of Registrable Securities or any
17
prospective purchaser or transferee designated by such Holder or beneficial
owner, such information (including, without limitation, the information
specified in Rule 144A(d)(4) under the ▇▇▇▇ ▇▇▇) as is necessary to permit sales
pursuant to Rule 144A under the 1933 Act and it will take such further action as
any Holder or beneficial owner of Registrable Securities may reasonably request,
and (c) take such further action that is reasonable in the circumstances, in
each case, to the extent required from time to time to enable such Holder to
sell its Registrable Securities without registration under the 1933 Act within
the limitation of the exemptions provided by (i) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time, (ii) Rule 144A under the 1933 Act,
as such Rule may be amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. Upon the request of any Holder or
beneficial owner of Registrable Securities, the Company will deliver to such
Holder a written statement as to whether it has complied with such requirements.
5.2. NO INCONSISTENT AGREEMENTS. The Company has not entered into nor
will the Company on or after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not and will not in any way
conflict with and are not and will not be inconsistent with the rights granted
to the holders of any of the Company's other issued and outstanding securities
under any other agreements entered into by the Company or any of its
subsidiaries.
5.3. AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or departure.
5.4. NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telecopier or any courier guaranteeing overnight delivery (a)
if to a Holder (other than the Initial Purchasers), at the address set forth in
the Required Information or the most current address given by such Holder to the
Company by means of a notice given in accordance with the provisions of this
Section 5.4, (b) if to an Initial Purchaser, at the most current address given
by such Initial Purchaser to the Company by means of a notice given in
accordance with the provisions of this Section 5.4, which address initially is
the address set forth in the Purchase Agreement with respect to such Initial
Purchaser, (c) if to the Company, initially at the Company's address set forth
in the Purchase Agreement, and thereafter at such other address of which notice
is given in accordance with the provisions of this Section 5.4, and (d) if to
any Underwriter, at the most current address given by such Underwriter to the
Company by means of a notice given in accordance with the provisions of this
Section 5.4, which address initially is the address set forth in the applicable
underwriting agreement.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; two business days
after being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged, if telecopied; and on the next business day if timely delivered to
an air courier guaranteeing overnight delivery.
18
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
5.5. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided, that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms hereof or of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities, such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement
and, if applicable, the Purchase Agreement, and such person shall be entitled to
receive the benefits hereof.
5.6. THIRD PARTY BENEFICIARIES. The Initial Purchasers (even if the
Initial Purchasers are not Holders of Registrable Securities) shall be third
party beneficiaries of the agreements made hereunder between the Company, on the
one hand, and the Holders, on the other hand, and shall have the right to
enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder. Each Holder of Registrable Securities shall be a third party
beneficiary to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights hereunder.
5.7. HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
5.8. SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the 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.
5.9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.10. 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.
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
VEECO INSTRUMENTS INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Executive Vice President, Chief
Financial Officer and Secretary
Confirmed and accepted as of the date first above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇ PARTNERS LLC
BY: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇ ▇▇▇▇▇▇
-----------------------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
