REGISTRATION RIGHTS AGREEMENT Dated October 2, 2009 among ELAN FINANCE PUBLIC LIMITED COMPANY,
Exhibit 99.2
EXECUTION COPY
Dated
October 2, 2009
among
ELAN
FINANCE PUBLIC LIMITED COMPANY,
ELAN
FINANCE CORP.,
ELAN
CORPORATION, PLC,
CERTAIN
SUBSIDIARY GUARANTORS
and
XXXXXX
XXXXXXX & CO. INCORPORATED,
CITIGROUP
GLOBAL MARKETS INC. AND
J & E
DAVY
THIS
REGISTRATION RIGHTS AGREEMENT (the “Agreement”) is made
and entered into October 2, 2009, among ELAN FINANCE PUBLIC LIMITED COMPANY, a
public limited company incorporated and registered under the laws of Ireland and
ELAN FINANCE CORP., a Delaware corporation (each, a co-issuer, and together, the
“Issuer”), ELAN
CORPORATION, PLC, a public limited company incorporated and registered under the
laws of Ireland (the “Company”), the
subsidiary guarantors listed on the signature pages hereto (the “Subsidiary
Guarantors”, and together with the Company, the “Guarantors”) and
XXXXXX XXXXXXX & CO. INCORPORATED, CITIGROUP GLOBAL MARKETS INC. AND J &
E DAVY (the “Initial
Purchasers”).
This
Agreement is made pursuant to the Purchase Agreement dated September 29, 2009,
among the Issuer, the Company, the Subsidiary Guarantors and the Initial
Purchasers (the “Purchase Agreement”),
which provides for the sale by the Issuer to the Initial Purchasers of an
aggregate of $625,000,000 principal amount of the Issuer’s 8.750% Senior Notes
due 2016 (the “Notes”). The
Notes will be unconditionally guaranteed (the “Guarantees”) on an
unsecured and unsubordinated basis by the Guarantors. The Notes will
be represented by global certificates in fully registered form, in minimum
denominations of $100,000 and integral multiples of $1,000 in excess thereof,
and will be issued pursuant to an indenture (the “Indenture”) dated
October 2, 2009, among the Issuer, the Company, the Subsidiary Guarantors and
BNY Corporate Trustee Services Limited, as trustee (the “Trustee”). We
refer in this Agreement to the Notes and the Guarantees as the “Securities”. In
order to induce the Initial Purchasers to enter into the Purchase Agreement, the
Issuer and the Guarantors have agreed to provide to the Initial Purchasers and
their direct and indirect transferees the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the
closing under the Purchase Agreement.
In
consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used
in this Agreement, the following capitalized defined terms shall have the
following meanings:
“1933 Act” shall mean
the Securities Act of 1933, as amended from time to time.
“1934 Act” shall mean
the Securities Exchange Act of 1934, as amended from time to time.
“Agreement” shall have
the meaning set forth in the preamble.
“Black-Out Periods”
shall have the meaning set forth in Section 3 hereof.
“Company” shall have
the meaning set forth in the preamble and shall also include the Company’s
successors.
“Exchange Dates” shall
have the meaning set forth in Section 2(a)(ii) therein.
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“Exchange Offer” shall
mean the exchange offer by the Issuer of Exchange Securities for Registrable
Securities pursuant to Section 2(a) hereof.
“Exchange Offer
Registration” shall mean a registration under the 1933 Act effected
pursuant to Section 2(a) hereof.
“Exchange Offer Registration
Statement” shall mean an exchange offer registration statement on Form
S-4 or F-4 (or, if applicable, on another appropriate form) and all amendments
and supplements to such registration statement, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
“Exchange Securities”
shall mean securities issued by the Issuer and the Guarantors under the
Indenture, and, in the case of the Notes, containing terms identical to the
Securities (except that (i) interest thereon shall accrue from the last date on
which interest was paid on the Securities or, if no such interest has been paid,
from October 2, 2009 and (ii) the Exchange Securities will not contain
restrictions on transfer and the Exchange Securities shall not be subject to any
increase in annual interest by operation of this Agreement) and to be offered to
Holders of Securities in exchange for Securities pursuant to the Exchange
Offer.
“Freely Transferable”
means, with respect to a Security, a Security that at any time of determination
(i) is freely transferable without volume restrictions by a Holder that is not
an “affiliate” (as defined in Rule 144 under the 1933 Act (“Rule 144”)) of the
Issuer where no conditions of Rule 144 are then applicable (other than the
holding period requirement in paragraph (d)(1)(ii) of Rule 144 so long as such
holding period requirement is satisfied at such time of determination) in
accordance with Rule 144 , or otherwise, (ii) whose restrictive legend relating
to the 1933 Act has been removed and (iii) does not bear a restricted CUSIP
number.
“Guarantees” shall
have the meaning set forth in the preamble.
“Guarantors” shall
have the meaning set forth in the preamble and shall also include each
Guarantor’s successors.
“Holder” shall mean
the Initial Purchasers, for so long as they own any Registrable Securities, and
each of their successors, assigns and direct and indirect transferees who become
registered owners of Registrable Securities under the Indenture; provided that for
purposes of Sections 4 and 5 of this Agreement, the term “Holder” shall include
Participating Broker-Dealers (as defined in Section 4(a)).
“Indenture” shall have
the meaning set forth in the preamble and shall also include any amendment
thereto made from time to time in accordance with the terms
thereof.
“Indemnified Party”
shall have the meaning set forth in Section 5(c) hereof.
“Indemnifying Party”
shall have the meaning set forth in Section 5(c) hereof.
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“Initial Purchasers”
shall have the meaning set forth in the preamble.
“Issue Date” shall
mean the first date of issuance of Securities under the Indenture.
“Issuer” shall have
the meaning set forth in the preamble and shall also include the Issuer’s
successors.
“Majority Holders”
shall mean the Holders of a majority of the aggregate principal amount of
outstanding Registrable Securities; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by the
Issuer or any of its affiliates (as such term is defined in Rule 405 under the
0000 Xxx) (other than the Initial Purchasers or subsequent Holders of
Registrable Securities if such subsequent holders are deemed to be such
affiliates solely by reason of their holding of such Registrable Securities)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage or amount.
“Notes” shall have the
meaning set forth in the preamble.
“Participating
Broker-Dealer” shall have the meaning set forth in Section 4(a)
hereof.
“Person” shall mean an
individual, partnership, limited liability company, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
“Purchase Agreement”
shall have the meaning set forth in the preamble.
“Prospectus” shall
mean the prospectus included in a Registration Statement, including any
preliminary prospectus, and any such prospectus as amended or supplemented by
any prospectus supplement, including a prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securities covered by a
Shelf Registration Statement, and by all other amendments and supplements to
such prospectus, and in each case including all material incorporated by
reference therein.
“Registrable
Securities” shall mean the Securities; provided, however, that the
Securities shall cease to be Registrable Securities (i) when such Securities are
exchanged, by a person other than a broker-dealer, for Exchange Securities in
the Exchange Offer Registration, (ii) in the case of any Exchange Securities
held by a broker-dealer, following the exchange by such broker-dealer in the
Exchange Offer Registration of a Security for such Exchange Security, the date
on which such Exchange Security is sold to a purchaser who receives from such
broker-dealer on or prior to the date of such sale a copy of the Prospectus
contained in the Exchange Offer Registration Statement, (iii) when a
Registration Statement with respect to such Securities has become effective
under the 1933 Act and such Securities have been disposed of pursuant to such
Registration Statement, (iv) when such Securities are Freely Transferable or (v)
when such Securities have otherwise ceased to be outstanding.
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“Registration
Expenses” shall mean any and all expenses incident to performance of or
compliance by the Issuer and the Guarantors with this Agreement, including
without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees, (ii) all
fees and expenses incurred in connection with compliance with state securities
or blue sky laws (including reasonable fees and disbursements of up to one
counsel in each relevant jurisdiction for any underwriters (in an Underwritten
Offering) or Holders in connection with blue sky qualification of any of the
Exchange Securities or Registrable Securities), (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 and any other documents relating to the performance of and
compliance with this Agreement and, in the case of an Underwritten Offering
only, any underwriting agreement or securities sales agreement (iv) all rating
agency fees, (v) all fees and disbursements relating to the qualification of the
Indenture under applicable securities laws, (vi) the fees and disbursements of
the Trustee and its counsel, (vii) the fees and disbursements of counsel
for the Issuer and the Guarantors and, in the case of a Shelf Registration
Statement, the fees and disbursements of one counsel for the Holders (which
counsel shall be selected by the Majority Holders and which counsel shall be
counsel for the Initial Purchasers unless the Majority Holders determine
otherwise) and (viii) the fees and disbursements of the independent public
accountants of the Issuer and the Guarantors, in the case of an Underwritten
Offering, including the expenses of any special audits or “cold comfort” letters
required by or incident to such performance and compliance; but excluding fees
and expenses of counsel to the underwriters or any advisers or experts retained
by them (other than fees and expenses set forth in clause (ii) above) or the
Holders and underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of Registrable Securities by a
Holder.
“Registration
Statement” shall mean any registration statement of the Issuer and the
Guarantors that covers any of the Exchange Securities or Registrable Securities
pursuant to the provisions of this Agreement and all amendments and supplements
to any such Registration Statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
“SEC” shall mean the
Securities and Exchange Commission.
“Securities” shall
have the meaning set forth in the preamble.
“Shelf Registration”
shall mean a registration effected pursuant to Section 2(b) hereof.
“Shelf Registration
Statement” shall mean a “shelf” registration statement of the Issuer and
the Guarantors pursuant to the provisions of Section 2(b) of this Agreement
which 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
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amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
“Subsidiary
Guarantors” shall have the meaning set forth in the
preamble.
“TIA” shall have the
meaning set forth in Section 3(l) hereof.
“Trustee” shall have
the meaning set forth in the preamble.
“Underwriter” shall
have the meaning set forth in Section 3 hereof.
“Underwritten
Offering” shall mean an offering in which Registrable Securities
registered on a Shelf Registration Statement are sold to an Underwriter for
reoffering to the public, when such Underwritten Offering is requested by the
Majority Holders. References herein to “Underwritten Offering” shall
refer only to the first such offering occurring during the term of this
Agreement.
2. Registration Under the 0000
Xxx.
(a) To the
extent not prohibited by any applicable law or applicable interpretation of the
Staff of the SEC and to the extent there are Registrable Securities outstanding
on the 366th day
after the Issue Date, the Issuer and the Guarantors shall file within 450 days
of the Issue Date an Exchange Offer Registration Statement covering the offer by
the Issuer and the Guarantors to the Holders to exchange all of the Registrable
Securities for Exchange Securities and to use their commercially reasonable
efforts to cause such Registration Statement to become effective within 540 days
of the Issue Date and remain effective until the closing of the Exchange
Offer. The Issuer and the Guarantors shall commence the Exchange
Offer promptly after the Exchange Offer Registration Statement has been declared
effective by the SEC and use their commercially reasonable efforts to have the
Exchange Offer consummated not later than 30 days after such effective
date. The Issuer and the Guarantors shall commence the Exchange
Offer by mailing the related exchange offer Prospectus and accompanying
documents to each Holder stating, in addition to such other disclosures as are
required by applicable law:
(i) that the
Exchange Offer is being made pursuant to this Registration Rights Agreement and
that all Registrable Securities validly tendered and not validly withdrawn will
be accepted for exchange;
(ii) the dates
of acceptance for exchange (which shall be a period of at least 20 business days
from the date such notice is mailed) (the “Exchange
Dates”);
(iii) that any
Registrable Security not tendered will remain outstanding and continue to accrue
interest, but will not retain any rights under this Agreement;
(iv) that
Holders electing to have a Registrable Security exchanged pursuant to the
Exchange Offer will be required to surrender such Registrable Security, together
with the enclosed letters of transmittal, to the institution and at the address
specified in the notice prior to the close of business on the last Exchange
Date; and
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(v) that
Holders will be entitled to withdraw their election, not later than the close of
business on the last Exchange Date, by sending to the institution and at the
address specified in the notice a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the principal amount of
Registrable Securities delivered for exchange and a statement that such Holder
is withdrawing his election to have such Securities exchanged.
As soon
as practicable after the last Exchange Date, the Issuer and the Guarantors
shall:
(i) accept
for exchange Registrable Securities or portions thereof validly tendered and not
validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver,
or cause to be delivered, to the Trustee for cancellation all Registrable
Securities or portions thereof so accepted for exchange by the Issuer and the
Guarantors and issue, and cause the Trustee to promptly authenticate and mail to
each Holder, an Exchange Security equal in principal amount to the principal
amount of the Registrable Securities surrendered by such Holder.
The
Issuer and the Guarantors shall use their commercially reasonable efforts to
complete the Exchange Offer as provided above and shall comply with the
applicable requirements of the 1933 Act, the 1934 Act and other applicable laws
and regulations in connection with the Exchange Offer. The Exchange
Offer shall not be subject to any conditions, other than that the Exchange Offer
does not violate applicable law or any applicable interpretation of the Staff of
the SEC. The Issuer and the Guarantors shall, subject to applicable
law, inform the Initial Purchasers of the names and addresses of the Holders to
whom the Exchange Offer is made, and the Initial Purchasers shall have the
right, subject to applicable law, to contact such Holders and otherwise
facilitate the tender of Registrable Securities in the Exchange
Offer.
(b) In the
event that (i) the Securities are Registrable Securities and (ii) (A) the
Issuer and the Guarantors determine that the Exchange Offer Registration
provided for in Section 2(a) above is not available or may not be consummated as
soon as practicable after the last Exchange Date because it would violate
applicable law or the applicable interpretations of the Staff of the SEC, (iii)
the Exchange Offer is not for any other reason consummated on or before the date
that is 570 days after the Issue Date or (iv) the Exchange Offer has been
completed and in the opinion of counsel for the Initial Purchasers a
Registration Statement must be filed and a Prospectus must be delivered by the
Initial Purchasers in connection with any offering or sale of Registrable
Securities, the Issuer and the Guarantors shall use their commercially
reasonable efforts to cause to be filed as soon as practicable after such
determination, date or notice of such opinion of counsel is given to the Issuer
or the Guarantors, as the case may be, a Shelf Registration Statement providing
for the sale by the Holders of all of the Registrable Securities and to have
such Shelf Registration Statement declared effective by the SEC. In
the event the Issuer and the Guarantors are required to file a Shelf
Registration Statement solely as a result of the matters referred to in clause
(iii) of the preceding sentence, the Issuer and the Guarantors shall use their
commercially reasonable efforts to file and have declared effective by the SEC
both an Exchange Offer Registration Statement pursuant to Section 2(a) with
respect to all Registrable Securities and a Shelf Registration Statement
(which
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may be a
combined Registration Statement with the Exchange Offer Registration Statement)
with respect to offers and sales of Registrable Securities held by the Initial
Purchasers after completion of the Exchange Offer. The Issuer and the
Guarantors agree to use their commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective until all of the Registrable
Securities covered by the Shelf Registration Statement cease to be Registrable
Securities, or such shorter period that will terminate when all of the
Registrable Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement. The Issuer and the
Guarantors further agree to supplement or amend the Shelf Registration Statement
if required by the rules, regulations or instructions applicable to the
registration form used by the Issuer and the Guarantors for such Shelf
Registration Statement or by the 1933 Act or by any other rules and regulations
thereunder for shelf registration or if reasonably requested by a Holder with
respect to information relating to such Holder, and to use their commercially
reasonable efforts to cause any such amendment to become effective and such
Shelf Registration Statement to become usable as soon as practicable
thereafter. The Issuer and the Guarantors agree to furnish to the
Holders of Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(c) The
Issuer and the Guarantors shall pay all Registration Expenses in connection with
the registration pursuant to Section 2(a) and Section 2(b). Each
Holder shall pay all expenses of its counsel (other than as expressly set forth
in this Agreement), all underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder’s Registrable
Securities pursuant to the Shelf Registration Statement.
(d) An
Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf
Registration Statement pursuant to Section 2(b) hereof will not be deemed to
have become effective unless it has been declared effective by the SEC; provided, however, that, if,
after it has been declared effective, the offering of Registrable Securities
pursuant to a Shelf Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental
agency or court, such Registration Statement will be deemed not to have become
effective during the period of such interference until the offering of
Registrable Securities pursuant to such Registration Statement may legally
resume. Subject to the provisions of the penultimate paragraph of
Section 3 hereof, in the event the Securities are Registrable Securities, the
Exchange Offer is not consummated and the Shelf Registration Statement is not
declared effective on or before the date that is 570 days after the Issue Date,
the interest rate on the Securities will be increased by 1.0% per annum until
the Exchange Offer is consummated or the Shelf Registration Statement, if
required, is declared effective by the SEC.
(e) Without
limiting the remedies available to the Initial Purchasers and the Holders, the
Issuer and the Guarantors acknowledge that any failure by the Issuer or the
Guarantors to comply with their obligations under Section 2(a) and
Section 2(b) hereof may result in material irreparable injury to the
Initial Purchasers or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure 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 Issuer and the
Guarantors’ obligations under Section 2(a) and Section 2(b)
hereof.
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3. Registration
Procedures.
In
connection with the obligations of the Issuer and the Guarantors with respect to
the Registration Statements pursuant to Section 2(a) and Section 2(b)
hereof, the Issuer and the Guarantors shall, if applicable:
(a) prepare
and file with the SEC a Registration Statement on the appropriate form under the
1933 Act, which form (x) shall be selected by the Issuer and the Guarantors and
(y) shall, in the case of a Shelf Registration, be available for the sale
of the Registrable Securities by the selling Holders thereof and (z) shall
comply as to form in all material respects with the requirements of the
applicable form and include or incorporate all financial statements required by
the SEC to be filed therewith, and use their commercially reasonable 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 to keep such Registration Statement
effective for the applicable period and cause each Prospectus to be supplemented
by any required prospectus supplement and, as so supplemented, to be filed
pursuant to Rule 424 under the 1933 Act; to keep each Prospectus current
during the period described under Section 4(3) and Rule 174 under the 1933 Act
that is applicable to transactions by brokers or dealers with respect to the
Registrable Securities or Exchange Securities;
(c) in the
case of a Shelf Registration, furnish to each Holder of Registrable Securities,
to counsel for the Initial Purchasers, to counsel for the Holders and to each
Underwriter of an Underwritten Offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such other documents as
such Holder or Underwriter may reasonably request, in order to facilitate the
public sale or other disposition of the Registrable Securities (it being
understood that documents available on XXXXX shall be deemed to be so furnished
as of the date of their availability on XXXXX); and the Issuer and the
Guarantors consent to the use of such Prospectus and any amendment or supplement
thereto in accordance with applicable law by each of the selling Holders of
Registrable Securities and any such Underwriters in connection with the offering
and sale of the Registrable Securities covered by and in the manner described in
such Prospectus or any amendment or supplement thereto in accordance with
applicable law;
(d) use their
reasonable best efforts to register or qualify the Registrable Securities under
all applicable state securities or “blue sky” laws of such jurisdictions as any
Holder of Registrable Securities covered by a Registration Statement shall
reasonably request in writing by the time the applicable Registration Statement
is declared effective by the SEC, to cooperate with such Holders in connection
with any filings required to be made with the Financial Industry Regulatory
Authority and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Holder to consummate the disposition in
each such jurisdiction of such Registrable Securities owned by such Holder;
provided, however, neither the
Issuer nor any Guarantor shall be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but
8
for this
Section 3(d), (ii) file any general consent to service of process or
(iii) subject itself to taxation in any such jurisdiction if it is not so
subject;
(e) in the
case of a Shelf Registration, notify each Holder of Registrable Securities,
counsel for the Holders and counsel for the Initial Purchasers promptly and, if
requested by any such Holder or counsel, confirm such advice in writing (i) when
a Registration Statement has become effective and when any post-effective
amendment thereto has been filed and becomes effective, (ii) of any request by
the SEC or any state securities authority for amendments and supplements to a
Registration Statement and Prospectus or for additional information after the
Registration Statement has become effective, (iii) of the issuance by the SEC or
any state securities authority of any stop order suspending the effectiveness of
a Registration Statement or the initiation of any proceedings for that purpose,
(iv) if, between the effective date of a Registration Statement and the closing
of any sale of Registrable Securities covered thereby, the representations and
warranties of the Issuer and the Guarantors contained in any underwriting
agreement, securities sales agreement or other similar agreement, if any,
relating to the offering cease to be true and correct in all material respects
or if the Issuer or the Guarantors receive any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding for such purpose, (v) of
the happening of any event during the period a Shelf Registration Statement is
effective which makes any statement made in such Registration Statement or the
related Prospectus untrue in any material respect or which requires the making
of any changes in such Registration Statement or Prospectus so that, in the case
of the Registration Statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and in the case of a
Prospectus, it will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein as necessary to be stated
therein to make the statements therein, in light of the circumstances under
which they were made not misleading and (vi) of any determination by the Issuer
and the Guarantors that a post-effective amendment to a Registration Statement
would be appropriate;
(f) use their
reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement as soon as practicable and provide
prompt notice to each Holder of the withdrawal of any such order;
(g) in the
case of a Shelf Registration, furnish to each Holder of Registrable Securities,
without charge, at least one conformed copy of each Registration Statement and
any post-effective amendment thereto (without documents incorporated therein by
reference or exhibits thereto, unless requested);
(h) in the
case of a Shelf Registration, cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends and enable such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and registered in such names
as the selling Holders may reasonably request at least three business day prior
to the closing of any sale of Registrable Securities;
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(i) in the
case of a Shelf Registration, upon the occurrence of any event contemplated by
Section 3(e)(v) hereof, use their reasonable best efforts to prepare and file
with the SEC a supplement or post-effective amendment to a Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities, such Prospectus will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The Issuer and the Guarantors
agree to notify the Holders to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and the Holders hereby agree
to suspend use of the Prospectus until the Issuer and the Guarantors have
amended or supplemented the Prospectus to correct such misstatement or
omission;
(j) unless
otherwise required by law or in the opinion of counsel to the Issuer or the
Guarantors, a reasonable time prior to the filing of any Registration Statement,
any Prospectus, any amendment to a Registration Statement or amendment or
supplement to a Prospectus or any document which is to be incorporated by
reference into a Registration Statement or a Prospectus after the initial filing
of a Registration Statement, provide copies of such document to the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, the Holders and their counsel) and make such of the representatives
of the Issuer and the Guarantors as shall be reasonably requested by the Initial
Purchasers or their counsel (and, in the case of a Shelf Registration Statement,
the Holders or their counsel) available for discussion of such document, and
shall not at any time file or make any amendment to the Registration Statement,
any Prospectus or any amendment of or supplement to a Registration Statement or
a Prospectus or any document which is to be incorporated by reference into a
Registration Statement or a Prospectus, of which the Initial Purchasers and
their counsel (and, in the case of a Shelf Registration Statement, the Holders
and their counsel) shall not have previously been advised and furnished a copy
or to which timely delivered reasonable comments by the Initial Purchasers or
their counsel (and, in the case of a Shelf Registration Statement, the Holders
or their counsel) shall not have been given reasonable consideration by the
Issuers and Guarantors;
(k) obtain a
CUSIP number for all Exchange Securities or Registrable Securities, as the case
may be, not later than the effective date of a Registration
Statement;
(l) cause the
Indenture to be qualified under the Trust Indenture Act of 1939, as amended (the
“TIA”), in
connection with the registration of the Exchange Securities or Registrable
Securities, as the case may be, cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the Indenture to be
so qualified in accordance with the terms of the TIA and execute, and use their
reasonable best efforts to cause the Trustee to execute, all documents as may be
required to effect such changes and all other forms and documents required to be
filed with the SEC to enable the Indenture to be so qualified in a timely
manner;
(m) to the
extent required under the 1933 Act and the rules and regulations thereunder in
order to register the Guarantees under the 1933 Act, to cause each Guarantor to
sign any Registration Statement and take all other action necessary to register
any such Guarantees under the applicable Registration Statement;
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(n) in the
case of a Shelf Registration, make available for inspection by a representative
of the Holders of the Registrable Securities, any Underwriter participating in
any disposition pursuant to such Shelf Registration Statement (in the case of an
Underwritten Offering), and attorneys and accountants designated by the Holders,
at reasonable times and in a reasonable manner, all financial and other records,
pertinent documents and properties of the Issuer and the Guarantors, and cause
the respective officers, directors and employees of the Issuer and the
Guarantors to supply all information reasonably requested by any such
representative, Underwriter, attorney or accountant in connection with a Shelf
Registration Statement;
(o) in the
case of a Shelf Registration, use their reasonable best efforts to cause all
Registrable Securities to be listed on any securities exchange or any automated
quotation system on which securities issued by the Issuer and the Guarantors
which are substantially identical to the Registrable Securities are then listed
if requested by the Majority Holders, to the extent such Registrable Securities
satisfy applicable listing requirements;
(p) use their
reasonable best efforts to cause the Exchange Securities or Registrable
Securities, as the case may be, to be rated by two nationally recognized
statistical rating organizations (as such term is defined in Rule 436(g)(2)
under the 0000 Xxx);
(q) if
reasonably requested by any Holder of Registrable Securities covered by a
Registration Statement, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment such information with respect to such Holder as such
Holder reasonably requests to be included therein and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment as soon
as the Issuer and the Guarantors have received notification of the matters to be
incorporated in such filing; and
(r) in the
case of a Shelf Registration, enter into such customary agreements and take all
such other actions in connection therewith (including those requested by the
Holders of a majority of the Registrable Securities being sold) in order to
expedite or facilitate the disposition of such Registrable Securities including,
but not limited to, an Underwritten Offering and in such connection, (i) to the
extent possible, make such representations and warranties to the Holders and any
Underwriters of such Registrable Securities with respect to the business of the
Issuer and the Guarantors and their respective subsidiaries, the Registration
Statement, Prospectus and documents incorporated by reference or deemed
incorporated by reference, if any, in each case, in form, substance and scope as
are customarily made by issuers to underwriters in underwritten offerings and
confirm the same if and when requested, (ii) obtain opinions of counsel to the
Issuer and the Guarantors (which counsel and opinions, in form, scope and
substance, shall be reasonably satisfactory to the Holders and such Underwriters
and their respective counsel) addressed to each selling Holder and Underwriter
of Registrable Securities, covering the matters customarily covered in opinions
requested in underwritten offerings, (iii) in the case of an Underwritten
Offering, use their reasonable best efforts to obtain “cold comfort” letters
from the independent certified public accountants of the Issuer and the
Guarantors (and, if necessary, any other certified public accountant of any
subsidiary of the Issuer and the Guarantors, or of any business acquired by the
Issuer or the Guarantors for which financial statements and financial data are
or are required to be included in the Registration Statement) addressed to each
Underwriter of Registrable Securities and such other Persons who
demonstrate
11
to the
reasonable satisfaction of such independent certified public accountants that
they have a due diligence defense under the Securities Act, such letters to be
in customary form and covering matters of the type customarily covered in “cold
comfort” letters in connection with underwritten offerings, and (iv) deliver
such documents and certificates as may be reasonably requested by the Holders of
a majority in principal amount of the Registrable Securities being sold or the
Underwriters, and which are customarily delivered in underwritten offerings, to
evidence the continued validity of the representations and warranties of the
Issuer and the Guarantors made pursuant to clause (i) above and to evidence
compliance with any customary conditions contained in an underwriting
agreement.
In the
case of a Shelf Registration Statement, the Issuer and the Guarantors may
require each Holder of Registrable Securities to furnish to the Issuer and the
Guarantors such information regarding the Holder and the proposed distribution
by such Holder of such Registrable Securities as the Issuer and the Guarantors
may from time to time reasonably request in writing.
In the
case of a Shelf Registration Statement, each Holder agrees that, upon receipt of
any notice from the Issuer or the Guarantors of the happening of any event of
the kind described in Section 3(e)(v) hereof, such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to a Registration
Statement until such Holder’s receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(i) hereof, and, if so directed by
the Issuer or the Guarantors, such Holder will deliver to the Issuer (at its
expense) all copies in its 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. If any such notice to
suspend the disposition of Registrable Securities pursuant to a Registration
Statement is given, the Issuer and the Guarantors shall extend the period during
which the Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including the date of
the giving of such notice to and including the date when the Holders shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions. If, prior to the effectiveness of any Shelf
Registration Statement, the Issuer or the Guarantors is aware that such Shelf
Registration Statement will not become effective within the time required for
effectiveness of such Shelf Registration Statement as a result of the happening
of any event of the kind described in Section 3(e)(v) hereof, the Issuers and
the Guarantors shall also be permitted to give a notice to such Holders of like
effect. The Issuer and the Guarantors may give any such notice only
twice during any 365 day period and any such suspensions may not exceed 30 days
for each suspension and there may not be more than two suspensions in effect
during any 365 day period. Such periods of suspension are defined as
“Black-Out
Periods”. If the Issuer and the Guarantors fail to keep the
Shelf Registration Statement effective at any time other then in a Black-Out
Period, the interest rate on the Securities will be increased by 1.0% per annum
until such Shelf Registration Statement becomes and remains
effective.
The
Holders of Registrable Securities covered by a Shelf Registration Statement who
desire to do so may sell such Registrable Securities in an Underwritten
Offering. In any such Underwritten Offering, the investment banker or
investment bankers and manager or managers (the “Underwriters”) that
will administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering.
12
Notwithstanding
anything in this Section 3 to the contrary, the requirements to file and
consummate an Exchange Offer and/or file a Shelf Registration Statement shall
terminate at such time as all the Registrable Securities are Freely
Transferable.
4. Participation of
Broker-Dealers in Exchange Offer.
(a) The Staff
of the SEC has taken the position that any broker-dealer that receives Exchange
Securities for its own account in the Exchange Offer in exchange for Securities
that were acquired by such broker-dealer as a result of market-making or other
trading activities (a “Participating
Broker-Dealer”), may be deemed to be an “underwriter” within the meaning
of the 1933 Act and must deliver a prospectus meeting the requirements of the
1933 Act in connection with any resale of such Exchange Securities.
The
Issuer and the Guarantors understand that it is the Staff’s position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the Exchange Securities, without
naming the Participating Broker-Dealers or specifying the amount of Exchange
Securities owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus delivery obligation under the 1933
Act in connection with resales of Exchange Securities for their own accounts, so
long as the Prospectus otherwise meets the requirements of the 1933
Act.
(b) In light
of the above, notwithstanding the other provisions of this Agreement, the Issuer
and the Guarantors agree that the provisions of this Agreement as they relate to
a Shelf Registration shall also apply to an Exchange Offer Registration to the
extent, and with such reasonable modifications thereto as may be, reasonably
requested by the Initial Purchasers or by one or more Participating
Broker-Dealers, in each case as provided in clause (ii) below, in order to
expedite or facilitate the disposition of any Exchange Securities by
Participating Broker-Dealers consistent with the positions of the Staff recited
in Section 4(a) above; provided
that:
(i) the
Issuer and the Guarantors shall not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement, as would
otherwise be contemplated by Section 3(i), for a period exceeding 180 days after
the last Exchange Date (as such period may be extended pursuant to the
penultimate paragraph of Section 3 of this Agreement) and Participating
Broker-Dealers shall not be authorized by the Issuer and the Guarantors to
deliver and shall not deliver such Prospectus after such period in connection
with the resales contemplated by this Section 4; and
(ii) the
application of the Shelf Registration procedures set forth in Section 3 of this
Agreement to an Exchange Offer Registration, to the extent not required by the
positions of the Staff of the SEC or the 1933 Act and the rules and regulations
thereunder, will be in conformity with the reasonable request to the Issuer and
the Guarantors by the Initial Purchasers or with the reasonable request in
writing to the Issuer and the Guarantors by one or more broker-dealers who
certify to the Initial Purchasers, the Issuer and the Guarantors in writing that
they anticipate that they will be Participating
13
Broker-Dealers;
and provided
further that,
in connection with such application of the Shelf Registration procedures set
forth in Section 3 to an Exchange Offer Registration, the Issuer and the
Guarantors shall be obligated (x) to deal only with one entity representing the
Participating Broker-Dealers, which shall be Xxxxxx Xxxxxxx & Co.
Incorporated unless it elects not to act as such representative, (y) to pay the
fees and expenses of only one counsel representing the Participating
Broker-Dealers, which shall be counsel to the Initial Purchasers unless such
counsel elects not to so act and (z) to cause to be delivered only one, if any,
“cold comfort” letter with respect to the Prospectus in the form existing on the
last Exchange Date and with respect to each subsequent amendment or supplement,
if any, effected during the period specified in clause (i) above.
(c) The
Initial Purchasers shall have no liability to the Issuer, the Guarantors or any
Holder with respect to any request that it may make pursuant to Section 4(b)
above.
5. Indemnification and
Contribution.
(a) The
Issuer and the Guarantors agree, jointly and severally, to indemnify and hold
harmless each Initial Purchaser, each Holder and each Person, if any, who
controls any Initial Purchaser or any Holder within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act, or is under common
control with, or is controlled by, any Initial Purchaser or any Holder, and each
affiliate of any Initial Purchaser within the meaning of Rule 405 under the
Securities Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by any Initial Purchaser, any Holder or any such controlling
or affiliated Person in connection with defending or investigating any such
action or claim) caused by or arising out of or in connection with any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) pursuant to which Exchange
Securities or Registrable Securities were registered under the 1933 Act,
including all documents incorporated therein by reference, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
caused by or arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus (as
amended or supplemented if the Issuer and the Guarantors shall have furnished
any amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact necessary to make the statements
therein in light of the circumstances under which they were made not misleading,
except insofar as such losses, claims, damages or liabilities are caused by (i)
any such untrue statement or omission or alleged untrue statement or omission
based upon information relating to the Initial Purchasers or any Holder
furnished to the Issuer and the Guarantors in writing through Xxxxxx Xxxxxxx
& Co. Incorporated or any selling Holder expressly for use therein or (ii)
the failure of such Initial Purchaser or Holder or control person thereof to
deliver a supplement or amendment to any Prospectus which would have corrected
such untrue statement or omission or alleged untrue statement or omission;
provided such failure did not result from the Issuer’s or the Guarantors’
failure to comply with Section 3 hereof. In connection with any
Underwritten Offering permitted by Section 3, the Issuer and the Guarantors will
provide indemnification no less favorable than as set forth above (or such other
indemnification acceptable to Holders or the Underwriters, if any) to the
Underwriters, if any, selling brokers, dealers and similar
securities
14
industry
professionals participating in the distribution, their officers and directors
and each Person who controls such Persons (within the meaning of the 1933 Act
and 1934 Act).
(b) Each
Holder agrees, severally and not jointly, to indemnify and hold harmless the
Issuer, the Guarantors, the Initial Purchasers and the other selling Holders,
and each of their respective directors, officers and each Person, if any, who
controls the Issuer, any Guarantor, any Initial Purchaser and any other selling
Holder within the meaning of either Section 15 of the 1933 Act or Section 20 of
the 1934 Act to the same extent as the foregoing indemnity from the Issuer and
the Guarantors to the Initial Purchasers and the Holders, but only with
reference to information relating to such Holder furnished to the Issuer and the
Guarantors in writing by such Holder expressly for use in any Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto).
(c) In case
any proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
Section 5(a) or 5(b), such Person (the “Indemnified Party”)
shall promptly notify the person against whom such indemnity may be sought (the
“Indemnifying
Party”) in writing and the Indemnifying Party shall be entitled to
participation therein and, at its election assume the defense thereof (except in
connection with any proceeding described in the next succeeding sentence) and
shall, upon request of the Indemnified Party, shall retain counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party and any
others the Indemnifying Party may designate in such proceeding and shall pay the
reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any Indemnified Party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party unless (i) the Indemnifying
Party and the Indemnified Party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the Indemnifying Party and the Indemnified Party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the Indemnifying Party shall not, in respect of the legal expenses of any
Indemnified Party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to one local counsel in each jurisdiction where
appropriate) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by Xxxxxx Xxxxxxx & Co. Incorporated, in the case of parties
indemnified pursuant to Section 5(a) above, and by the Company, in the case of
parties indemnified pursuant to Section 5(b) above. The Indemnifying Party shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Party
shall have requested an Indemnifying Party to reimburse the Indemnified Party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the Indemnifying Party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
Indemnifying Party of the aforesaid request and (ii) such Indemnifying Party
shall not have reimbursed the Indemnified Party in accordance with such request
prior to the date of such settlement. No Indemnifying
15
Party
shall, without the prior written consent of the Indemnified Party, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such proceeding.
(d) To the
extent the indemnification provided for in Section 5(a) or 5(b) is judicially
determined to be unavailable to an Indemnified Party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Party under such paragraph, in lieu of indemnifying such
Indemnified Party thereunder, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuer and the Guarantors on the one hand and the
Initial Purchasers on the other hand from the offering of the Securities or (ii)
if the allocation provided by clause 5(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 5(d)(i) above but also the relative
fault of the Issuer and the Guarantors on the one hand and of the Initial
Purchasers on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Issuer
and the Guarantors on the one hand and the Initial Purchasers on the other hand
in connection with the offering of the Securities shall be deemed to be in the
same respective proportions as the net proceeds from the offering of the
Securities (before deducting expenses) received by the Issuer and the total
discounts and commissions received by the Initial Purchasers, bear to the
aggregate offering price of the Securities. The relative fault of the Issuer and
the Guarantors on the one hand and of the Initial Purchasers on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Issuer and the
Guarantors or by the Initial Purchasers and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Initial Purchasers’ respective obligations to
contribute pursuant to this Section 5 are several in proportion to the
respective principal amount of Securities they have purchased hereunder, and not
joint.
(e) The
Issuer, the Guarantors and each Holder agree that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by pro rata allocation (even
if the Initial Purchasers were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or
payable by an Indemnified Party as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions
of this Section 5, no Holder shall be required to indemnify or contribute any
amount in excess of the amount by which the total price at which Registrable
Securities were sold by such Holder exceeds the amount of any damages that such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any Person who was not guilty of
such fraudulent misrepresentation. The remedies provided for in this
Section 5
16
are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any Indemnified Party at law or in equity.
The
indemnity and contribution provisions contained in this Section 5 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 the Initial
Purchasers, any Holder or any Person controlling any Initial Purchaser or
any Holder, or by or on behalf of the Issuer and the Guarantors, their
respective officers or directors or any Person controlling the Issuer or the
Guarantors, (iii) acceptance of any of the Exchange Securities and (iv) any
sale of Registrable Securities pursuant to a Shelf Registration
Statement.
6. Miscellaneous.
(a) No Inconsistent
Agreements. The Issuer and the Guarantors have not entered
into, and on or after the date of this Agreement will not enter into, any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not
in any way conflict with and are not inconsistent with the rights granted to the
holders of the Issuer and the Guarantors’ other issued and outstanding
securities under any such agreements.
(b) Amendments and
Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
unless the Issuer and the Guarantors have obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or consent; provided, however, that no
amendment, modification, supplement, waiver or consent to any departure from the
provisions of Section 5 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such
Holder.
(c) Notices. All
notices and other communications provided for or permitted hereunder shall be
made in writing by hand-delivery, registered first-class mail, telex,
telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder,
at the most current address given by such Holder to the Issuer and the
Guarantors by means of a notice given in accordance with the provisions of this
Section 6(c), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; and (ii) if to the
Issuer and the Guarantors, initially at the Issuer’s and the Company’s address
set forth in the Purchase Agreement and thereafter at such other address, notice
of which is given in accordance with the provisions of this Section
6(c).
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 is acknowledged, if telecopied; and
on the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
17
Copies of
all such notices, demands, or other communications shall be concurrently
delivered by the Person giving the same to the Trustee, at the address specified
in the Indenture.
(d) Successors and
Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors, assigns and transferees of each of the parties,
including, without limitation and without the need for an express assignment,
subsequent Holders; provided that nothing
herein shall be deemed to permit any assignment, transfer or other disposition
of Registrable Securities in violation of the terms of the Purchase
Agreement. 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 and such Person shall be entitled to
receive the benefits hereof. The Initial Purchasers (in their
capacity as Initial Purchasers) shall have no liability or obligation to the
Issuer and the Guarantors with respect to any failure by a Holder to comply
with, or any breach by any Holder of, any of the obligations of such Holder
under this Agreement.
(e) Purchases and Sales of
Securities. The Issuer and the Guarantors shall not, and shall
use their best efforts to cause their affiliates (as defined in Rule 405 under
the 0000 Xxx) not to, purchase and then resell or otherwise transfer any
Securities.
(f) Third Party
Beneficiary. The Holders shall be third party beneficiaries to
the agreements made hereunder between the Issuer and the Guarantors, 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 or the rights of Holders
hereunder.
(g) Counterparts. This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement.
(h) Headings. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
(i) Governing
Law. This Agreement shall be governed by the laws of the State
of New York.
(j) Submission to Jurisdiction;
Appointment of Agent for Service; Waiver of Immunity. The
Issuer and each of the Guarantors agrees that any suit, action or proceeding
against the Issuer or any of the Guarantors brought by any Holders, the
directors, officers, employees and agents of any Holder, or by any person who
controls any Holder, arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in any state or federal court
in The City of New York, New York, and waives any objection which it may now or
hereafter have to the laying of venue of any such proceeding, and irrevocably
submits to the non-exclusive jurisdiction of such courts in any suit, action or
proceeding.
18
Each of
the Issuer and the Guarantors, to the fullest extent permitted by applicable
law, (i) irrevocably and fully waives the defense of an inconvenient forum to
the maintenance of such suit or proceeding and (ii) irrevocably designates and
appoints National Registered Agents, Inc., 000 Xxxxxx xx Xxxxxxxx, Xxxxx 000,
Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent (the “Authorized Agent”)
upon whom process may be served in any such suit or proceeding. In
the event that such person is unable to serve as the Authorized Agent for any
reason, each of the Issuer and the Guarantors hereby agrees to maintain the
uninterrupted designation of an Authorized Agent upon whom process may be served
in any such suit or proceeding and agrees to notify you of the name and address
of any such future Authorized Agent. Each of the Issuer and the
Guarantors, to the fullest extent permitted by applicable law, hereby
irrevocably authorizes and directs the Authorized Agent to accept such
service. Each of the Issuer and the Guarantors further agrees that
service of process upon the Authorized Agent and written notice of said service
to the Issuer or the Guarantors mailed by first class mail or delivered to the
Authorized Agent shall be deemed in every respect effective service of process
upon the Issuer or the Guarantors, as the case may be, in any such suit or
proceeding. Nothing herein shall affect the right of any person to
service process in any other manner permitted by law.
Each of
the Issuer and Guarantors agrees that a final action in any such suit or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other lawful manner.
Each of
the Issuer and the Guarantors hereby irrevocably waives, to the extent permitted
by law, any immunity to jurisdiction to which they may otherwise be entitled
(including, without limitation, immunity to pre-judgment attachment,
post-judgment attachment and execution) in any legal suit, action or proceeding
against them arising out of or based on this Agreement or the transactions
contemplated hereby.
The
provisions of this Section 6(j) are intended to be effective upon the execution
of this Agreement without the further action by the Issuer, the Guarantors, the
Initial Purchasers or the Holders and the introduction of a true copy of this
Agreement into evidence shall be conclusive and final evidence as to such
matters.
(k) 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.
19
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
|
ELAN
FINANCE PUBLIC LIMITED COMPANY
|
|
By:
___________________________________
Name:
Title:
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ELAN
FINANCE CORP.
|
|
By:
__________________________________
Name:
Title:
|
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ELAN
CORPORATION, PLC
|
|
By:
____________________________________
Name:
Title:
|
|
[SUBSIDIARY
GUARANTORS:
|
|
By:
___________________________________
Name:
Title: ]
|
|
Confirmed
and accepted as of
|
|
|
the
date first above written:
|
|
Xxxxxx
Xxxxxxx & Co. Incorporated
|
|
Citigroup
Global Markets Inc.
|
|
J
& E Davy
|
|
By:
Xxxxxx Xxxxxxx & Co. Incorporated
|
|
By:
________________________________
|
|
Name:
|
|
Title:
|
|
By:
Citigroup Global Markets Inc.
|
|
By:
_________________________________
|
|
Name:
|
|
Title:
|
|
By:
J & E Davy
|
|
By:
_________________________________
|
|
Name:
|
|
Title:
|
