Exhibit 4.3
DEUTSCHE BANK SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
$180,000,000 AGGREGATE PRINCIPAL AMOUNT
POLYMEDICA CORPORATION
1.00% CONVERTIBLE SUBORDINATED NOTES
DUE SEPTEMBER 15, 2011
RESALE REGISTRATION RIGHTS AGREEMENT
DATED SEPTEMBER 19, 2006
RESALE REGISTRATION RIGHTS AGREEMENT, dated as of September 19, 2006,
among PolyMedica Corporation, a Massachusetts corporation (together with any
successor entity, herein referred to as the "COMPANY"), Deutsche Bank Securities
Inc. and Banc of America Securities LLC, as representatives (the
"REPRESENTATIVES") of the several initial purchasers (the "INITIAL PURCHASERS")
under the Purchase Agreement (as defined below).
Pursuant to the Purchase Agreement, dated as of September 13, 2006,
between the Company and the Representatives (the "PURCHASE AGREEMENT"), relating
to the initial placement (the "INITIAL PLACEMENT") of the Notes (as defined
below), the Initial Purchasers have agreed to purchase from the Company
$180,000,000 in aggregate principal amount of 1.00% Convertible Subordinated
Notes due September 15, 2011 (the "NOTES"). The Notes will be convertible,
subject to the terms thereof, into fully paid, nonassessable shares of common
stock, par value $0.01 per share, of the Company (the "COMMON STOCK"). To induce
the Initial Purchasers to purchase the Notes, the Company has agreed to provide
the registration rights set forth in this Agreement pursuant to Section 5(g) of
the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. Capitalized terms used in this Agreement without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized terms shall have
the following meanings:
"AFFILIATE" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such specified person. For purposes of this definition, control of a
person means the power, direct or indirect, to direct or cause the direction of
the management and policies of such person whether by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AGREEMENT": This Resale Registration Rights Agreement.
"BLUE SKY APPLICATION": As defined in Section 6(a)(i) hereof.
"BUSINESS DAY": The definition of "Business Day" in the Indenture.
"CLOSING DATE": The date of the first issuance of the Notes.
"COMMISSION": Securities and Exchange Commission.
"COMMON STOCK": As defined in the preamble hereto.
"COMPANY": As defined in the preamble hereto.
"EFFECTIVENESS DATE": As defined in Section 2(a)(iii) hereof.
"EFFECTIVENESS PERIOD": As defined in Section 2(a)(iii) hereof.
"EFFECTIVENESS TARGET DATE": As defined in Section 2(a)(ii) hereof.
"EXCHANGE ACT": Securities Exchange Act of 1934, as amended.
"FREE WRITING PROSPECTUS": A free writing prospectus, as defined in Rule
405 under the Securities Act.
"HOLDER": A Person who owns, beneficially or otherwise, Transfer
Restricted Securities.
"INDEMNIFIED HOLDER": As defined in Section 6(a) hereof.
"INDENTURE": The Indenture, dated as of September 19, 2006 between the
Company and LaSalle Bank National Association, a national banking association
organized under the laws of the United States, as trustee (the "TRUSTEE"),
pursuant to which the Notes are to be issued, as such Indenture is amended,
modified or supplemented from time to time in accordance with the terms thereof.
"INITIAL PLACEMENT": As defined in the preamble hereto.
"INITIAL PURCHASERS": As defined in the preamble hereto.
"ISSUER FREE WRITING PROSPECTUS": An issuer free writing prospectus, as
defined in Rule 433 under the Securities Act.
"LIQUIDATED DAMAGES": As defined in Section 3(a) hereof.
"LIQUIDATED DAMAGES PAYMENT DATE": Each March 15 and September 15.
"LOSSES": As defined in Section 6(a) hereof.
"MAJORITY OF HOLDERS": Holders holding over 50% of the aggregate principal
amount of Notes outstanding; provided that, for the purpose of this Agreement, a
holder of shares of Common Stock which constitute Transfer Restricted Securities
shall be deemed to hold an aggregate principal amount of the Notes (in addition
to the principal amount of the Notes held by such holder) equal to the quotient
of (x) the number of such shares of Common Stock held by such holder and (y) the
conversion rate in effect at the time of their issuance upon conversion of the
Notes as determined in accordance with the Indenture.
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"MANAGING UNDERWRITER": The investment banker or investment bankers and
manager or managers that administer an underwritten offering, if any, conducted
pursuant to Section 8 hereof.
"NASD": National Association of Securities Dealers, Inc.
"NOTES": As defined in the preamble hereto.
"NOTICE AND QUESTIONNAIRE" means a written notice executed by the
respective Holder and delivered to the Company containing substantially the
information called for by the Selling Securityholder Notice and Questionnaire
attached as Appendix A to the Offering Memorandum of the Company relating to the
Notes.
"NOTICE HOLDER": On any date, any Holder of Transfer Restricted Securities
that has delivered a Notice and Questionnaire to the Company on or prior to such
date.
"PERMITTED FREE WRITING PROSPECTUS": As defined in Section 9(a) hereof.
"PERSON": An individual, partnership, corporation, company, unincorporated
organization, trust, joint venture or a government or agency or political
subdivision thereof.
"PURCHASE AGREEMENT": As defined in the preamble hereto.
"PROSPECTUS": The prospectus included in a Shelf Registration Statement,
as amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference into such prospectus.
"RECORD HOLDER": With respect to any Liquidated Damages Payment Date, each
Person who is a registered holder of the Notes on the March 1 or September 1, as
the case may be, preceding the relevant Liquidated Damages Payment Date.
"REGISTRATION DEFAULT": As defined in Section 3(a) hereof.
"REPRESENTATIVES": As defined in the preamble hereto.
"SECURITIES ACT": Securities Act of 1933, as amended.
"SHELF REGISTRATION STATEMENT": As defined in Section 2(a)(i) hereof.
"SUSPENSION NOTICE": As defined in Section 4(c) hereof.
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"SUSPENSION PERIOD": As defined in Section 4(b)(ii) hereof.
"TIA": Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder, in each case, as in effect on the date
the Indenture is qualified under the TIA.
"TRANSFER RESTRICTED SECURITIES": Each Note and each share of Common Stock
issued upon conversion of Notes until the earliest of:
(i) the date on which such Note or such share of Common Stock issued
upon conversion has been effectively registered under the Securities Act
and disposed of in accordance with the Shelf Registration Statement;
(ii) the date on which such Note or such share of Common Stock
issued upon conversion is transferred in compliance with Rule 144 (or any
other similar provision then in force) under the Securities Act or
transferable pursuant to paragraph (k) of Rule 144 under the Securities
Act (or any other similar provision then in force);
(iii) the date on which such Note or such share of Common Stock
issued upon conversion ceases to be outstanding (whether as a result of
redemption, repurchase and cancellation, conversion or otherwise); or
(iv) the date on which the holding period in respect of Notes shares
of Common Stock held by non-affiliates of the Company under Rule 144(k)
under the Securities Act, or any successor provision, has expired.
"UNDERWRITER": Any underwriter of Transfer Restricted Securities in
connection with an offering thereof under the Shelf Registration Statement.
"UNDERWRITTEN REGISTRATION": A registration in which Transfer Restricted
Securities of the Company are sold to an underwriter for reoffering to the
public.
Unless the context otherwise requires, the singular includes the plural,
and words in the plural include the singular.
2. Shelf Registration.
(a) The Company shall:
(i) as promptly as practicable (subject to Section 2(a)(ii)
hereof) and not later than 180 days after the date hereof cause to
be
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filed a registration statement pursuant to Rule 415 under the
Securities Act or any similar rule that may be adopted by the
Commission (the "SHELF REGISTRATION STATEMENT"), which Shelf
Registration Statement shall provide for the registration and
resales, on a continuous or delayed basis, of all Transfer
Restricted Securities subject to the terms and conditions hereof and
be an automatic shelf registration if the Company is eligible to use
an automatic shelf registration at the time of the filing;
(ii) use its commercially reasonable efforts to cause the
Shelf Registration Statement to become effective under the
Securities Act not later than 180 days after the date hereof (the
"EFFECTIVENESS TARGET DATE", and the date of such effectiveness or
availability, the "EFFECTIVENESS DATE"); and
(iii) use its commercially reasonable efforts to keep the
Shelf Registration Statement continuously effective, supplemented
and amended as required by the Securities Act and by the provisions
of Section 4(b) hereof to the extent necessary to ensure that (A) it
is available for resales by the Holders of Transfer Restricted
Securities entitled, subject to the terms and conditions hereof, to
the benefit of this Agreement and (B) conforms with the requirements
of this Agreement and the Securities Act and the rules and
regulations of the Commission promulgated thereunder as announced
from time to time, for a period (the "EFFECTIVENESS PERIOD") from
the date the Shelf Registration Statement becomes effective until
the date that the Notes and the shares of Common Stock issuable upon
exchange thereof have ceased to be Transfer Restricted Securities.
The Company shall be deemed not to have used its commercially
reasonable efforts to keep the Shelf Registration Statement effective
during the Effectiveness Period if it voluntarily takes any action that
would result in Holders of Transfer Restricted Securities not being able
to offer and sell such securities at any time during the Effectiveness
Period, unless such action is (x) required by applicable law or otherwise
undertaken by the Company in good faith and for valid business reasons
(not including avoidance of the Company's obligations hereunder),
including the acquisition or divestiture of assets, or (y) permitted by
Section 4(b)(ii) hereof.
(b) Not less than 30 days prior to the date upon which it intends to
seek effectiveness of the registration statement, the Company shall mail
the Notice and Questionnaire to the Holders. Each Holder that becomes a
Notice Holder (and provides such additional information as the Company
reasonably may request) no later than the later of 20 days following such
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Xxxxxx's receipt of notice from the Company of the filing of the Shelf
Registration Statement and the second Business Day before the
effectiveness of the Shelf Registration Statement shall be named as a
selling securityholder in the initial Registration Statement made
available to Holders under the Shelf Registration Statement.
(c) If the Shelf Registration Statement ceases to be effective for
any reason at any time during the Effectiveness Period (other than because
all Transfer Restricted Securities registered thereunder shall have been
resold pursuant thereto or shall have otherwise ceased to be Transfer
Restricted Securities), the Company shall use its commercially reasonable
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof or file or designate a subsequent Shelf Registration
Statement covering all of the securities that as of the date of such
filing or designation are Transfer Restricted Securities. If such a
subsequent Shelf Registration Statement is filed or designated (and is not
already effective), the Company shall use its commercially reasonable
efforts to cause the subsequent Shelf Registration Statement to become
effective as promptly as is practicable after such filing or designation
and to keep such subsequent Shelf Registration Statement continuously
effective until the end of the Effectiveness Period.
(d) The Company shall supplement and amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable
to the registration form used by the Company for such Shelf Registration
Statement, if required by the Securities Act or as reasonably requested by
the Initial Purchasers or by the Trustee on behalf of the Holders of the
Transfer Restricted Securities covered by such Shelf Registration
Statement.
(e) The Company shall cause the Shelf Registration Statement and the
related Prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement or such amendment or
supplement, and any Issuer Free Writing Prospectus, as of the date
thereof, (i) to comply in all material respects with the applicable
requirements of the Securities Act, and (ii) not to contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein (in
the case of the Prospectus and any Issuer Free Writing Prospectus, in
light of the circumstances under which they were made) not misleading.
(f) Each Holder agrees that if such Holder wishes to sell Transfer
Restricted Securities pursuant to a Shelf Registration Statement and
related Prospectus, it will do so only in accordance with the terms and
conditions of this Agreement. Each Holder wishing to sell Transfer
Restricted Securities pursuant to a Shelf Registration Statement and
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related Prospectus from and after the Effectiveness Date agrees to deliver
a Notice and Questionnaire to the Company at least 10 Business Days prior
to any intended distribution of Transfer Restricted Securities under the
Shelf Registration Statement. From and after the Effectiveness Date, the
Company shall, as promptly as practicable after the date a Notice and
Questionnaire is delivered to it, and in any event upon the later of (x)
10 days (or 45 days in the case of a post-effective amendment) after such
date or (y) 10 days after the expiration of any Suspension Period in
effect when the Notice and Questionnaire is delivered or put into effect:
(i) if required by applicable law, file with the SEC a
post-effective amendment to the Shelf Registration Statement or
prepare and, if required by applicable law, file a supplement to the
related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required
document so that the Holder delivering such Notice and Questionnaire
is named as a selling securityholder in the Shelf Registration
Statement and the related Prospectus in such a manner as to permit
such Holder to deliver such Prospectus to purchasers of the Transfer
Restricted Securities in accordance with applicable law and, if the
Company shall file a post-effective amendment to the Shelf
Registration Statement, use its best efforts to cause such
post-effective amendment to become effective under the Securities
Act as promptly as is practicable;
(ii) provide such Holder copies of any documents filed
pursuant to Section 2(f)(i); and
(iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective
amendment filed pursuant to Section 2(f)(i);
provided that if such Notice and Questionnaire is delivered during a Suspension
Period, the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above upon expiration of the Suspension Period in accordance with Section
4(b). Notwithstanding anything contained herein to the contrary, the Company
shall be under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Registration Statement or related Prospectus and
provided, further, that the Company shall not be required to file a
post-effective amendment to the Shelf Registration Statement for the purpose of
naming additional Holders more frequently than once per fiscal quarter.
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3. Liquidated Damages.
(a) If:
(i) the Shelf Registration Statement has not been filed and
become effective prior to or on the Effectiveness Target Date;
(ii) the Company has failed to perform its obligations set
forth in Section 2(f) within the time periods required therein;
(iii) except as provided in Section 4(b)(ii) hereof, the Shelf
Registration Statement is filed and has become effective but, during
the Effectiveness Period, shall thereafter cease to be effective or
fail to be usable for its intended purpose; or
(iv) Suspension Periods exceed an aggregate of 30 days within
any three-month period or an aggregate of 90 days in any 12-month
period;
(each such event referred to in foregoing clauses (i) through (iv), a
"REGISTRATION DEFAULT"), the Company hereby agrees to pay interest
("LIQUIDATED DAMAGES") with respect to the Transfer Restricted Securities
from and including the day following the Registration Default to but
excluding the earlier of (1) the day on which the Registration Default has
been cured and (2) the date the Shelf Registration Statement is no longer
required to be kept effective, accruing to each holder of Notes at a rate
equal to 0.50% per annum of the aggregate principal amount of the Notes.
Holders of Common Stock issued upon conversion of Notes will not be
entitled to any Liquidated Damages in respect of any Registration Default
with respect to such Common Stock.
(b) All accrued Liquidated Damages shall be paid in arrears in cash
to Record Holders by the Company on each Liquidated Damages Payment Date.
Upon the cure of all Registration Defaults relating to any particular
Transfer Restricted Security, the accrual of applicable Liquidated Damages
will cease and accrued and unpaid Liquidated Damages through the date of
cure of all such Registration Defaults shall be paid in cash on the
subsequent interest payment date to the Record Holders.
All obligations of the Company set forth in this Section 3 that are
outstanding with respect to any Transfer Restricted Security at the time such
security ceases to be a Transfer Restricted Security shall survive until such
time as all such obligations with respect to such Transfer Restricted Security
shall have been satisfied in full.
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The Liquidated Damages set forth above shall be the exclusive monetary
remedy available to the Holders of Transfer Restricted Securities for each
Registration Default.
4. Registration Procedures.
(a) In connection with the Shelf Registration Statement, the Company
shall comply with all the provisions of Section 4(b) hereof and shall use
its commercially reasonable efforts to effect such registration to permit
the sale of the Transfer Restricted Securities, and pursuant thereto,
shall as expeditiously as possible prepare and file with the Commission a
Shelf Registration Statement relating to the registration on any
appropriate form under the Securities Act.
(b) In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities, the Company shall:
(i) Subject to any notice by the Company in accordance with
this Section 4(b) of the existence of any fact or event of the kind
described in Section 4(b)(iv)(D), use its commercially reasonable
efforts to keep the Shelf Registration Statement continuously
effective during the Effectiveness Period; upon the occurrence of
any event that would cause the Shelf Registration Statement or the
Prospectus contained therein (A) to contain a material misstatement
or omission or (B) not to be effective and usable for resale of
Transfer Restricted Securities during the Effectiveness Period, the
Company shall file promptly a post-effective amendment to the Shelf
Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document, in the case of
clause (A), correcting any such misstatement or omission, and, in
the case of either clause (A) or (B), use its commercially
reasonable efforts to cause any such amendment to become effective
and the Shelf Registration Statement and the related Prospectus to
become usable for their intended purposes as soon as practicable
thereafter.
(ii) Notwithstanding Section 4(b)(i) hereof, the Company may
suspend the effectiveness of the Shelf Registration Statement (each
such period, a "SUSPENSION PERIOD"):
(x) if an event occurs and is continuing as a result of
which the Shelf Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by
reference therein would, in the Company's judgment, contain an
untrue statement of a material fact or omit to state a material
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fact required to be stated therein or necessary to make the
statements therein not misleading; and
(y) if the Company determines in good faith that the
disclosure of a material event at such time would be seriously
detrimental to the Company and its subsidiaries.
Upon the occurrence of any event described in clauses (x) and (y) of this
Section 4(b)(ii), the Company shall give notice to the Holders that the
availability of the Shelf Registration is suspended and, upon actual
receipt of any such notice, each Holder agrees not to sell any Transfer
Restricted Securities pursuant to the Shelf Registration until such
Xxxxxx's receipt of copies of the supplemented or amended Prospectus
provided for in Section 4(b) hereof. The period during which the
availability of the Shelf Registration and any Prospectus is suspended
(the "SUSPENSION PERIOD") shall not exceed 30 days in any three-month
period; provided, further, that Suspension Periods shall not exceed an
aggregate of 90 days in any 12-month period. The Company shall not be
required to specify in the written notice to the Holders the nature of the
event giving rise to the Suspension Period.
(iii) Prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may
be necessary to keep the Shelf Registration Statement effective
during the Effectiveness Period; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities
Act, and to comply fully with the applicable provisions of Rule 424
under the Securities Act in a timely manner; and comply with the
provisions of the Securities Act with respect to the disposition of
all Transfer Restricted Securities covered by the Shelf Registration
Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof
set forth or to be set forth in the Shelf Registration Statement or
supplement to the Prospectus.
(iv) Advise the selling Holders and any Initial Purchaser that
has provided in writing to the Company a telephone or facsimile
number and address for notices, promptly and, if requested by such
selling Holders, to confirm such advice in writing (which notice
pursuant to clauses (B) through (E) below shall be accompanied by an
instruction to suspend the use of the Prospectus until the Company
shall have remedied the basis for such suspension):
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(A) when the Prospectus, any Prospectus supplement, any
post-effective amendment or any Issuer Free Writing Prospectus
has been filed, and, with respect to the Shelf Registration
Statement or any post-effective amendment thereto, when the
same has become effective,
(B) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement, the
Prospectus or any Issuer Free Writing Prospectus or for
additional information relating thereto,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration
Statement under the Securities Act or of any notice that would
prevent its use, or of the suspension by any state securities
commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the
threatening or initiation of any proceeding for any of the
preceding purposes,
(D) of the existence of any fact or the happening of any
event, during the Effectiveness Period, that makes any
statement of a material fact made in the Shelf Registration
Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein
untrue, or that requires the making of any additions to or
changes in the Shelf Registration Statement or the Prospectus
in order to make the statements therein (in the case of the
Prospectus, in the light of the circumstances under which they
were made) not misleading, or
(E) when any Issuer Free Writing Prospectus includes
information that may conflict with the information contained
in the Registration Statement.
(v) If at any time the Commission shall issue any stop order
suspending the effectiveness of the Shelf Registration Statement or
any notice that would prevent its use, or any state securities
commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky
laws, the Company shall use its commercially reasonable
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efforts to obtain the withdrawal or lifting of such order at the
earliest possible time, including, if necessary, by filing an
amendment to the Shelf Registration Statement or a new Shelf
Registration Statement and using its commercially reasonable efforts
to have such amendment or new Shelf Registration Statement declared
effective, and will provide to each Holder who is named in the Shelf
Registration Statement prompt notice of the withdrawal of any such
order or of the filing or effectiveness of any such amendment or new
registration statement.
(vi) Make available at reasonable times for inspection by one
or more representatives of the selling Holders, designated in
writing by a Majority of Holders whose Transfer Restricted
Securities are included in the Shelf Registration Statement, and any
attorney or accountant retained by such selling Holders and any
underwriter participating in any disposition pursuant to the Shelf
Registration Statement, all financial and other records, pertinent
corporate documents and properties of the Company as shall be
reasonably necessary to enable them to conduct a reasonable
investigation within the meaning of Section 11 of the Securities
Act, and cause the Company's officers, directors, managers and
employees to supply all information reasonably requested by any such
representative or representatives of the selling Holders, attorney
or accountant in connection therewith.
(vii) If requested by any selling Holders or the
Representatives, promptly incorporate in the Shelf Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders may
reasonably request to have included therein, including, without
limitation, information relating to the "Plan of Distribution" of
the Transfer Restricted Securities.
(viii) Deliver to each selling Holder, without charge, as many
copies of the Prospectus (including each preliminary Prospectus) and
any amendment or supplement thereto, and any Issuer Free Writing
Prospectus, as such Persons reasonably may request; subject to
Section 4(b)(ii) and subject to any notice by the Company in
accordance with this Section 4(b) of the existence of any fact or
event of the kind described in Section 4(b)(iv)(B) through (E), the
Company hereby consents to the use of the Prospectus and any
amendment or supplement thereto, and any Issuer Free Writing
Prospectus, by each of the selling Holders in connection with the
offering and the sale of the Transfer Restricted Securities covered
by the Prospectus or any amendment or supplement thereto.
(ix) Before any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
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Restricted Securities under the securities or Blue Sky laws of such
jurisdictions in the United States as the selling Holders may
reasonably request and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the Shelf Registration
Statement; provided, however, that the Company shall not be required
(A) to register or qualify as a foreign corporation or a dealer of
securities where it is not now so qualified or to take any action
that would subject it to the service of process in any jurisdiction
where it is not now so subject, other than service of process for
suits arising out of the Initial Placement or any offering pursuant
to the Shelf Registration Statement, or (B) to subject itself to
general or unlimited service of process or to taxation in any such
jurisdiction if they are not now so subject.
(x) Unless any Transfer Restricted Securities shall be in
book-entry form only, cooperate with the selling Holders to
facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not
bearing any restrictive legends (unless required by applicable
securities laws); and enable such Transfer Restricted Securities to
be in such denominations and registered in such names as the Holders
may request at least two Business Days before any sale of Transfer
Restricted Securities.
(xi) Use its commercially reasonable efforts to cause the
Transfer Restricted Securities covered by the Shelf Registration
Statement to be registered with or approved by such other U.S.
governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof to consummate the disposition of such
Transfer Restricted Securities.
(xii) Subject to Section 4(b)(ii) hereof, if any fact or event
contemplated by Section 4(b)(iv)(B) through (D) hereof shall exist
or have occurred, use its commercially reasonable efforts to prepare
a supplement or post-effective amendment to the Shelf Registration
Statement, related Prospectus (including by means of an Issuer Free
Writing Prospectus), relevant Issuer Free Writing Prospectus or any
document incorporated therein by reference or to file any other
required document so that, as thereafter delivered to the purchasers
of Transfer Restricted Securities, none of the Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus will
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein (in the case of the
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Prospectus and any such Issuer Free Writing Prospectus, in the light
of the circumstances in which they are made) not misleading.
(xiii) Provide CUSIP numbers for all Transfer Restricted
Securities not later than the effective date of the Shelf
Registration Statement and provide the Trustee under the Indenture
with certificates for the Notes that are in a form eligible for
deposit with The Depository Trust Company.
(xiv) 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 that is required to be undertaken
in accordance with the rules and regulations of the NASD.
(xv) Otherwise use its commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission
and all reporting requirements under the rules and regulations of
the Exchange Act.
(xvi) Make generally available to its security holders an
earnings statement satisfying the provisions of Section 11(a) of the
Securities Act as soon as practicable after the effective date of
the Shelf Registration Statement and in any event no later than 40
days after the end of the 12-month period (or 75 days, if such
period is a fiscal year) beginning with the first month of the
Company's first fiscal quarter commencing after the effective date
of the Shelf Registration Statement.
(xvii) Cause the Indenture to be qualified under the TIA not
later than the effective date of the Shelf Registration Statement
required by this Agreement (or the time when the registration as to
the Notes under the Shelf Registration Statement is required to
become effective hereunder), and, in connection therewith, cooperate
with the Trustee and the holders of Notes to effect such changes to
the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and execute and
use its commercially reasonable efforts to cause the Trustee
thereunder to execute all documents that may be required to effect
such changes and all other forms and documents required to be filed
with the Commission to enable such Indenture to be so qualified in a
timely manner. In the event that any such amendment or modification
referred to in this Section 4(b)(xvii) involves the appointment of a
new trustee under the Indenture, the Company shall appoint a new
trustee thereunder pursuant to the applicable provisions of the
Indenture.
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(xviii) Cause all Common Stock covered by the Shelf
Registration Statement to be listed or quoted, as the case may be,
on each securities exchange or automated quotation system on which
Common Stock is then listed or quoted.
(xix) Provide to each Holder upon written request each
document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act after the effective
date of the Shelf Registration Statement, unless such document is
available through the Commission's XXXXX system.
(xx) Use its commercially reasonable efforts, if the Notes
have been rated prior to the initial sale of such Notes, to confirm
such ratings will apply to the Notes covered by the Shelf
Registration Statement.
(xxi) In connection with any underwritten offering conducted
pursuant to Section 8 hereof, make such representations and
warranties to the Holders of Notes registered thereunder and the
underwriters, in form, substance and scope as are customarily made
by issuers to underwriters in primary underwritten offerings and
covering matters including, but not limited to, those set forth in
the Purchase Agreement;
(xxii) In connection with any underwritten offering conducted
pursuant to Section 8 hereof, 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) addressed to each selling Holder and the
underwriters, if any, covering such matters as are customarily
covered in opinions requested in underwritten offerings and such
other matters as may be reasonably requested by such Holders and
underwriters;
(xxiii) In connection with any underwritten offering conducted
pursuant to Section 8, hereof, obtain "comfort" letters and updates
thereof from the independent certified public accountants of the
Company (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Shelf Registration
Statement), addressed to each selling Holder of Notes registered
thereunder and the underwriters, in customary form and covering
matters of the type customarily covered in "comfort" letters in
connection with primary underwritten offerings; and
15
(xxiv) In connection with any underwritten offering conducted
pursuant to Section 8 hereof, deliver such documents and
certificates as may be reasonably requested by the Majority Holders
and the Managing Underwriters, including those to evidence
compliance with Section 4(b)(iii) hereof and with any customary
conditions contained in the Purchase Agreement or other agreement
entered into by the Company.
(xxv) In connection with underwritten offering conducted
pursuant to Section 8 hereof, the Company shall, if requested,
promptly include or incorporate in a Prospectus supplement or
post-effective amendment to the Shelf Registration Statement such
information as the Managing Underwriters reasonably agree should be
included therein and to which the Company does not reasonably object
and shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after it is notified
of the matters to be included or incorporated in such Prospectus
supplement or post-effective amendment.
(xxvi) Use its commercially reasonable efforts to take all
other steps necessary to effect the registration of the Transfer
Restricted Securities covered by the Shelf Registration Statement.
(xxvii) Enter into customary agreements (including, if
requested, an underwriting agreement in customary form) and take all
other appropriate actions in order to expedite or facilitate the
registration or the disposition of the Transfer Restricted
Securities, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification
provisions and procedures no less favorable than those set forth in
Section 6 hereof.
The actions set forth in clauses (xxi), (xxii), (xxiii) and (xxiv) of this
Section 4(b) shall be performed at (A) the effectiveness of the Shelf
Registration Statement and each post-effective amendment thereto; and (b) each
closing under any underwriting or similar agreement as and to the extent
required thereunder.
(c) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice (a "SUSPENSION NOTICE") from the
Company of the existence of any fact of the kind described in Section
4(b)(iv)(B) through (E) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the Shelf
Registration Statement and use of the Prospectus and any related Free
Writing Prospectuses until:
16
(i) such Holder has received copies of the supplemented or
amended Prospectus or applicable Issuer Free Writing Prospectus
contemplated by Section 4(b)(xii) hereof; or
(ii) such Xxxxxx is advised in writing by the Company that the
use of the Prospectus and any applicable Issuer Free Writing
Prospectus may be resumed, and has received copies of any additional
or supplemental filings that are incorporated by reference in the
Prospectus.
If so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities and any Issuer Free Writing Prospectus that was current at the time
of receipt of such Suspension Notice.
(d) Each Holder agrees by acquisition of a Transfer Restricted
Security, that no Holder shall be entitled to sell any of such Transfer
Restricted Securities pursuant to a Registration Statement, or to receive
a Prospectus relating thereto, unless such Holder has furnished the
Company with a Notice and Questionnaire as required pursuant to Section
2(b) or Section 2(f) hereof (including the information required to be
included in such Notice and Questionnaire) and the information set forth
in the next sentence. The Company may require each Notice Holder of Notes
to be sold pursuant to the Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the distribution of such
Notes as the Company may from time to time reasonably require for
inclusion in such Registration Statement. Each Notice Holder agrees
promptly to furnish to the Company all information required to be
disclosed in order to make the information previously furnished to the
Company by such Notice Holder not misleading and any other information
regarding such Notice Holder and the distribution of such Transfer
Restricted Securities as the Company may from time to time reasonably
request in writing. The Company may exclude from such Shelf Registration
Statement the Notes of any Holder that unreasonably fails to furnish such
information within a reasonable time after receiving such request.
5. Registration Expenses.
All expenses incident to the Company's performance of or compliance
with this Agreement shall be borne by the Company regardless of whether a
Shelf Registration Statement becomes effective, including, without
limitation:
17
(a) all registration and filing fees and expenses (including filings
made with the NASD);
(b) all fees and expenses of compliance with federal securities and
state Blue Sky or securities laws;
(c) all expenses of printing (including printing of Prospectuses,
Issuer Free Writing Prospectuses and certificates for the Common Stock to
be issued upon conversion of the Notes) and the Company's expenses for
messenger and delivery services and telephone;
(d) all fees and disbursements of counsel to the Company;
(e) all application and filing fees in connection with listing (or
authorizing for quotation) the Common Stock on a national securities
exchange or automated quotation system pursuant to the requirements
hereof; and
(f) all fees and disbursements of independent certified public
accountants of the Company.
The Company shall bear its internal expenses (including, without
limitation, all salaries and expenses of their officers and employees performing
legal, accounting or other duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company. The Company shall pay all expenses customarily borne by issuers in an
underwritten offering as set forth in Section 8(c) hereof.
6. Indemnification And Contribution.
(a) The Company agrees to indemnify and hold harmless each Holder of
Transfer Restricted Securities (including each Initial Purchaser), its
directors, officers, employees and agents, and each person, if any, who
controls any Holder within the meaning of the Securities Act or the
Exchange Act (each, an "INDEMNIFIED HOLDER"), against any loss, claim,
damage, liability or expense, as incurred, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability
or expense relating to resales of the Transfer Restricted Securities)
(collectively, "LOSSES"), to which such Indemnified Holder may become
subject, insofar as any such Loss arises out of or is based upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained in (A) the Shelf Registration Statement as
originally filed or in any amendment thereof, or (B) any blue sky
application or other document or any amendment or supplement thereto
prepared or executed by the Company (or based upon written
information furnished by or on behalf of the Company
18
expressly for use in such blue sky application or other document or
amendment or supplement) filed in any jurisdiction specifically for
the purpose of qualifying any or all of the Transfer Restricted
Securities under the securities law of any state or other
jurisdiction (such application or document being hereinafter called
a "BLUE SKY APPLICATION"), or, in each case, the omission or alleged
omission to state therein any material fact required to be stated
therein or necessary to make the statements therein not misleading;
or
(ii) any untrue statement or alleged untrue statement of a
material fact contained in any Issuer Free Writing Prospectus, any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom
of a material fact, in each case, necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading,
and to reimburse each Indemnified Holder for any and all expenses
including the fees and disbursements of counsel as such expenses are
reasonably incurred by such Indemnified Holder in connection with
investigating, defending, settling, compromising or paying any such Loss;
provided, however, that the foregoing indemnity agreement shall not apply
to any Loss to the extent, but only to the extent, arising out of or based
upon any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Holder (or
its related Indemnified Holder) expressly for use therein. The indemnity
agreement set forth in this Section 6(a) shall be in addition to any
liabilities that the Company may otherwise have.
The Company also agrees to indemnify as provided in this Section 6(a) or
contribute as provided in Section 6(e) hereof to Losses of each
underwriter, if any, of Transfer Restricted Securities registered under a
Shelf Registration Statement, their directors, officers, employees or
agents and each person who controls such underwriter on substantially the
same basis as that of the indemnification of the Initial Purchasers and
the selling Holders provided in this Section 6(a) and shall, if requested
by any Holder, enter into an underwriting agreement reflecting such
agreement, as provided in Section 4(b)(xxvi) hereof.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, each of its directors, each of its officers who
sign the Shelf Registration Statement and each person, if any, who
controls the Company within the meaning of the Securities Act or the
Exchange Act (i) to the same extent as the foregoing indemnity from the
19
Company to each such Holder, but only with reference to written
information relating to such Holder furnished to the Company by or on
behalf of such Holder specifically for inclusion in the documents referred
to in the foregoing indemnity and (ii) against any Loss, joint or several,
including, but not limited to, any Loss relating to resales of the
Transfer Restricted Securities, to which such person may become subject,
insofar as any such Loss arises out of, or is based upon any Free Writing
Prospectus used by such Holder without the prior consent of the Issuer,
and in connection with any underwritten offering, the underwriters,
provided that the indemnification obligation in this clause (ii) shall be
several, not joint and several, among the Holders who used such Free
Writing Prospectus. This indemnity agreement set forth in this Section
shall be in addition to any liabilities which any such Holder may
otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 6, notify the indemnifying party in
writing of the commencement thereof, but the failure to notify the
indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a)
or (b) above. In case any such action is brought against any indemnified
party and such indemnified party seeks or intends to seek indemnity from
an indemnifying party, the indemnifying party will be entitled to
participate in, and, to the extent that it shall elect, jointly with all
other indemnifying parties similarly notified, by written notice delivered
to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense thereof with counsel
satisfactory to such indemnified party; provided, however, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that a conflict may arise between the positions of the
indemnifying party and the indemnified party in conducting the defense of
any such action or that there may be legal defenses available to it and/or
other indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from
the indemnifying party to such indemnified party of such indemnifying
party's election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be
liable to such indemnified party under this
20
Section 6 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with
the proviso to the preceding sentence (it being understood, however, that
the indemnifying party shall not be liable for the expenses of more than
one separate counsel (other than local counsel), reasonably approved by
the indemnifying party, representing the indemnified parties who are
parties to such action) or (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action, in each of which cases the fees and expenses of counsel shall
be at the expense of the indemnifying party.
(d) The indemnifying party under this Section 6 shall not be liable
for any settlement of any proceeding effected without its written consent,
which shall not be withheld unreasonably, but if settled with such consent
or if there is a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party against any Loss 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 Section 6(c) hereof, 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 party shall, without the prior written consent of the
indemnified party, effect any settlement, compromise or consent to the
entry of judgment in any pending or threatened action, suit or proceeding
in respect of which any indemnified party is or could have been a party
and indemnity was or could have been sought hereunder by such indemnified
party, unless such settlement, compromise or consent (x) includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such action, suit or proceeding and
(y) 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.
(e) If the indemnification provided for in Section 6 is for any
reason unavailable to or otherwise insufficient to hold harmless an
indemnified party in respect of any Loss referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or
payable by such indemnified party, as incurred, as a result of any Loss
referred to therein:
21
(i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and the
Holders, on the other hand, from the offering and sale of the
Transfer Restricted Securities, on the one hand, and a Holder with
respect to the sale by such Holder of the Transfer Restricted
Securities, on the other hand, or
(ii) if the allocation provided by Section (6)(e)(i) above is
not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
Section 6(e)(i) above but also the relative fault of the Company, on
the one hand, and the Holders, on the other hand, in connection with
the statements or omissions or alleged statements or omissions that
resulted in such Loss, as well as any other relevant equitable
considerations.
The relative benefits received by the Company, on the one hand, and the
Holders, on the other hand, in connection with such offering and such sale
of the Transfer Restricted Securities pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds
from the offering of the Notes purchased under the Purchase Agreement
(before deducting expenses) received by the Company and the total proceeds
received by the Holders with respect to their sale of Transfer Restricted
Securities. The relative fault of the Company, on the one hand, and the
Holders, 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 the Company, on the one hand, or the
Holders, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Company and the Holders agree that it would not be just
and equitable if contribution pursuant to this Section 6(e) were
determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in this
Section 6(e).
The amount paid or payable by a party as a result of the Loss
referred to above shall be deemed to include, subject to the limitations
set forth in Section 6(c), any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any
action or claim.
Notwithstanding the provisions of this Section 6, in no event will
(i) any Holder be required to undertake liability to any person under this
Section 6 for any amounts in excess of the dollar amount of the proceeds
to be received by such Holder from the sale of such Xxxxxx's Transfer
22
Restricted Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to any Shelf Registration Statement under
which such Transfer Restricted Securities are to be registered under the
Securities Act and (ii) any underwriter be required to undertake liability
to any person hereunder for any amounts in excess of the discount or
commission payable to such underwriter with respect to the Transfer
Restricted Securities underwritten by it and distributed to the public. No
Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any Person who was not guilty of such fraudulent misrepresentation.
The Holders' obligations to contribute as provided in this Section 6(e)
are several and not joint.
(f) The provisions of this Section 6 shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder
or the Company or any of the officers, directors, employees, agents or
controlling persons referred to in Section 6 hereof, and will survive the
sale by a Holder of Transfer Restricted Securities.
7. Rule 144A and Rule 144. The Company agrees with each Holder, for so
long as any Transfer Restricted Securities remain outstanding and during any
period in which the Company (i) is not subject to Section 13 or 15(d) of the
Exchange Act, to make available, upon request of any Holder, to such Holder of
Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities designated by such
Holder, the information required by Rule 144A(d)(4) under the Securities Act in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144A, and (ii) is subject to Section 13 or 15 (d) of the Exchange Act, to make
all filings required thereby in a timely manner in order to permit resales of
such Transfer Restricted Securities pursuant to Rule 144.
8. Underwritten Registrations.
(a) Any Holder of Transfer Restricted Securities who desires to do
so may sell Transfer Restricted Securities (in whole or in part) in an
underwritten offering; provided that (i) the Electing Holders of at least
33-1/3% in aggregate principal amount of the Transfer Restricted
Securities then covered by the Shelf Registration Statement shall request
such an offering and (ii) at least such aggregate principal amount of such
Transfer Restricted Securities shall be included in such offering; and
provided further that the Company shall not be obligated to participate in
more than one underwritten offering during the Effectiveness Period. Upon
receipt of such a request, the Company shall provide all Holders of
Transfer Restricted Securities written notice of the request, which notice
shall inform such Holders that they have the opportunity to participate in
the offering. If any of the Transfer Restricted Securities covered by the
Shelf
23
Registration Statement are to be sold in an underwritten offering, the
Managing Underwriters shall be selected by the Majority Holders.
(b) No person may participate in any underwritten offering pursuant
to the Shelf Registration Statement unless such person (i) agrees to sell
such person's Transfer Restricted Securities on the basis reasonably
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements; (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents reasonably required under the terms of such
underwriting arrangements; and (iii) if such Holder is not then a Notice
Holder, such Xxxxxx returns a completed and signed Notice and
Questionnaire to the Company in accordance with Section 2(b) or Section
2(f) hereof within a reasonable amount of time before such underwritten
offering.
(c) The Holders participating in any underwritten offering shall be
responsible for any underwriting discounts and commissions and fees and,
subject to Section 5 hereof, expenses of their own counsel. The Company
shall pay all expenses customarily borne by issuers in an underwritten
offering, including but not limited to filing fees, the fees and
disbursements of its counsel and independent public accountants and any
printing expenses incurred in connection with such underwritten offering.
Notwithstanding the foregoing or the provisions of Section 4(b)(xxiv)
hereof, upon receipt of a request from the Managing Underwriter or a
representative of holders of a majority of the Transfer Restricted
Securities to be included in an underwritten offering to prepare and file
an amendment or supplement to the Shelf Registration Statement and
Prospectus in connection with an underwritten offering, the Company may
delay the filing of any such amendment or supplement for up to 90 days if
the Board of Directors of the Company shall have determined in good faith
that the Company has a bona fide business reason for such delay.
9. Miscellaneous.
(a) Free Writing Prospectuses. Each Holder represents that it has
not prepared or had prepared on its behalf or used or referred to, and
agrees that it will not prepare or have prepared on its behalf or use or
refer to, any Free Writing Prospectus, and has not distributed and will
not distribute any written materials in connection with the offer or sale
of the Transfer Restricted Securities without the prior express written
consent of the Company and, in connection with any underwritten offering,
the underwriters. Any such Free Writing Prospectus consented to by the
Company and, if applicable, the underwriters, as the case may be, is
hereinafter referred to as a "PERMITTED FREE WRITING PROSPECTUS." The
Company represents and agrees that it has treated and will treat, as the
24
case may be, each Permitted Free Writing Prospectus as an Issuer Free
Writing Prospectus, including in respect of timely filing with the
Commission, legending and recordkeeping.
(b) Remedies. The Company acknowledges and agrees that any failure
by the Company to comply with its obligations under Section 2 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, in addition to being entitled to exercise all
rights provided to it herein, in the Indenture or in the Purchase
Agreement or granted by law, including recovery of liquidated or other
damages, the Initial Purchasers or any Holder may obtain such relief as
may be required to specifically enforce the Company's obligations under
Section 2 hereof. The Company further agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(c) Actions Affecting Transfer Restricted Securities. The Company
shall not, directly or indirectly, take any action with respect to the
Transfer Restricted Securities as a class that would adversely affect the
ability of the Holders of Transfer Restricted Securities to include such
Transfer Restricted Securities in a registration undertaken pursuant to
this Agreement.
(d) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders in this Agreement or otherwise
conflicts with the provisions hereof. In addition, the Company shall not
grant to any of its securityholders (other than the Holders of Transfer
Restricted Securities in such capacity) the right to include any of its
securities in the Shelf Registration Statement provided for in this
Agreement other than the Transfer Restricted Securities.
(e) Amendments and Waivers. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given, unless the Company has obtained
the written consent of a Majority of Holders; provided, however, that with
respect to any matter that directly or indirectly adversely affects the
rights of any Initial Purchaser hereunder, the Company shall obtain the
written consent of each such Initial Purchaser against which such
amendment, qualification, supplement, waiver or consent is to be
effective. Notwithstanding the foregoing (except the foregoing proviso), a
waiver or consent to depart from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose securities
are being sold pursuant to a Shelf
25
Registration Statement and does not directly or indirectly adversely
affect the rights of other Holders, may be given by the Majority Holders,
determined on the basis of Transfer Restricted Securities being sold
rather than registered under such Shelf Registration Statement.
(f) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first class
mail (registered or certified, return receipt requested), facsimile
transmission, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the registrar under the Indenture or the transfer agent of the
Common Stock, as the case may be; and
(ii) if to the Company, initially at its address set forth in
the Purchase Agreement,
With a copy to:
PolyMedica Corporation
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile No.: (000) 000-0000
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 receipt acknowledged, if transmitted by facsimile; and on the
next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Any party hereto may change the address for receipt of communications by
giving written notice to the others.
(g) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Securities. The Company hereby agrees to extend
the benefit of this Agreement to any Holder and any such Holder may specifically
enforce the provisions of this Agreement as if an original party hereto.
(h) 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.
26
(i) Jurisdiction. The Company agrees that any suit, action or
proceeding against the Company brought by any Holder or Initial Purchaser,
the directors, officers, employees, Affiliates and agents of any Holder or
Initial Purchaser, or by any person who controls any Holder or Initial
Purchaser, arising out of or based upon this Agreement or the transactions
contemplated hereby may be instituted in any State or U.S. federal court
in The City of New York and County of 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. The Company hereby appoints
[CT Corporation] as its authorized agent (the "AUTHORIZED AGENT") upon
whom process may be served in any suit, action or proceeding arising out
of or based upon this Agreement or the transactions contemplated herein
which may be instituted in any State or U.S. federal court in The City of
New York and County of New York, by any Holder or Initial Purchaser, the
directors, officers, employees, Affiliates and agents of any Holder or
Initial Purchaser, or by any person who controls any Holder or Initial
Purchaser, and expressly accepts the non-exclusive jurisdiction of any
such court in respect of any such suit, action or proceeding. The Company
hereby represents and warrants that the Authorized Agent has accepted such
appointment and has agreed to act as said agent for service of process,
and the Company agrees to take any and all action, including the filing of
any and all documents that may be necessary to continue such appointment
in full force and effect as aforesaid. Service of process upon the
Authorized Agent shall be deemed, in every respect, effective service of
process upon the Company. The Company further agrees to take any and all
action, including the execution and filing of any and all such documents
and instruments, as may be necessary to continue such designation and
appointment in full force and effect so long as any of the Notes shall be
outstanding. To the extent that the Company may acquire any immunity from
jurisdiction of any court or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property,
it hereby irrevocably waives such immunity in respect of this Agreement,
to the fullest extent permitted by law.
(j) Notes Held by the Company or Their Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Transfer
Restricted Securities is required hereunder, Transfer Restricted
Securities held by the Company or its Affiliates (other than subsequent
Holders if such subsequent Holders are deemed to be Affiliates solely by
reason of their holding of such Transfer Restricted Securities) shall not
be counted in determining whether such consent or approval was given by
the Holders of such required percentage.
27
(k) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(l) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(m) Severability. If 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, it being
intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(n) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration rights
granted by the Company with respect to the Transfer Restricted Securities.
This Agreement supersedes all prior agreements and understandings between
the parties with respect to such subject matter.
28
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
POLYMEDICA CORPORATION
By
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Name:
Title:
DEUTSCHE BANK SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
Acting severally on behalf of themselves and the
several Initial Purchasers
By DEUTSCHE BANK SECURITIES INC.
By
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Authorized Representative
By
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Authorized Representative
By BANC OF AMERICA SECURITIES LLC
By
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Authorized Representative
