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EXHIBIT 10.2
A/B Exchange
Registration Rights Agreement
Dated as of April 30, 1997
by and among
L-3 Communications Corporation,
Xxxxxx Brothers Inc.
and
BancAmerica Securities, Inc.
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A/B EXCHANGE
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement")
is made and entered into as of April 30, 1997 by and among L-3 Communications
Corporation, a Delaware corporation (the "Company"), and Xxxxxx Brothers Inc.
and BancAmerica Securities, Inc. (together, the "Initial Purchasers"), each
of whom has agreed to purchase the Company's 10 3/8% Senior Subordinated
Notes due 2007 (the "Series A Notes") pursuant to the Purchase Agreement (as
defined below).
This Agreement is made pursuant to the Purchase
Agreement, dated April 25, 1997 (the "Purchase Agreement"), by and among the
Company and the Initial Purchasers. In order to induce the Initial
Purchasers to purchase the Series A Notes, the Company has agreed to provide
the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the obligations of the Initial
Purchasers set forth in Section 3 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized
terms shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Broker-Dealer: Any broker or dealer registered under
the Exchange Act.
Broker-Dealer Transfer Restricted Securities: Series B
Notes (including any Subsidiary Guarantees) that are acquired by a Restricted
Broker-Dealer for its own account as a result of market-making activities or
other trading activities.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be
deemed "Consummated" for purposes of this Agreement upon the occurrence of
(i) the filing and effectiveness under the Act of the Exchange Offer
Registration Statement relating to the Series B Notes to be issued in the
Exchange Offer, (ii) the maintenance of such Registration Statement
continuously effective and the keeping of the Exchange Offer open for a
period not less than the minimum period required pursuant to Section 3(b)
hereof, and (iii) the delivery by the Company to the Registrar under the
Indenture of Series B Notes in the same aggregate principal amount as the
aggregate principal amount of Series A Notes that were tendered by Holders
thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Series A
Notes, each Interest Payment Date.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as
amended.
Exchange Offer: The registration by the Company under
the Act of the Series B Notes (including any Subsidiary Guarantees) pursuant
to a Registration Statement pursuant to which the Company offers the Holders
of all outstanding Transfer Restricted Securities the opportunity to exchange
all such outstanding Transfer Restricted Securities held by such Holders for
Series B Notes and registered Subsidiary Guarantees in an aggregate principal
amount equal to the aggregate principal amount of the Transfer Restricted
Securities tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The
Registration Statement relating to the Exchange Offer, including the related
Prospectus.
Exempt Resales: The transactions in which the Initial
Purchasers propose to sell the Series A Notes to (i) certain "qualified
institutional buyers," as such term is defined in Rule 144A under the Act,
(ii) to certain institutional "accredited investors," as such term is defined
in Rule 501(a)(1), (2), (3) and (7) under the Act ("Accredited Institutions")
and (iii) outside the United States to Persons other than U.S. Persons in
offshore transactions meeting the requirements of rule 904 of Regulation S
under the Act.
Guarantor: Any subsidiary of the Company that executes
a Subsidiary Guarantee under the Indenture.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of the date hereof,
1997, among the Company and The Bank of New York, as trustee (the
"Trustee"), pursuant to which the Notes are to be issued, as such Indenture
is amended or supplemented from time to time in accordance with the terms
thereof.
Initial Purchasers: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and
the Notes.
Market-Maker Prospectus: As defined in Section 4
hereof.
NASD: National Association of Securities Dealers, Inc.
Notes: The Series A Notes and the Series B Notes.
Person: An individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.
Prospectus: The prospectus included in a Registration
Statement including, without limitation, a Market-Maker Prospectus, 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 Damages Payment
Date relating to Notes, each Person who is a Holder of Notes on the record
date with respect to the Interest Payment Date on which such Damages Payment
Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any Registration Statement of
the Company relating to (a) an offering of Series B Notes pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, which is filed
pursuant to the provisions of this Agreement including the registration for
resale of Broker-Dealer Transfer Restricted Securities, in each case
including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and material
incorporated by reference therein.
Restricted Broker-Dealer: Any Broker-Dealer that is an
affiliate of the Company that the holds Broker-Dealer Transfer Restricted
Securities.
Series B Notes: The Company's 10 3/8% Senior
Subordinated Notes due 2007 to be issued pursuant to the Indenture in the
Exchange Offer.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4
hereof.
Subsidiary Guarantee: The Guarantee by a Guarantor of
the Company's obligations under the Notes and Indenture.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note (including
any Subsidiary Guarantee), until the earliest to occur of (a) the date on
which such Note is exchanged in the Exchange Offer and entitled to be resold
to the public by the Holder thereof without complying with the prospectus
delivery requirements of the Act, (b) the date on which such Note (including
any Subsidiary Guarantee) has been effectively registered under the Act and
disposed of in accordance with a Shelf Registration Statement and (c) the
date on which such Note (including any Subsidiary Guarantee) is distributed
to the public pursuant to Rule 144 under the Act or by a Broker-Dealer
pursuant to the "Plan of Distribution" contemplated by the Exchange Offer
Registration Statement (including delivery of the Prospectus contained
therein).
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an underwriter
for reoffering to the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities and Broker-Dealer
Transfer Restricted Securities. The securities entitled to the benefits of
this Agreement are the Transfer Restricted Securities and Broker-Dealer
Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A
Person is deemed to be a holder of Transfer Restricted Securities (each, a
"Holder") whenever such Person owns Transfer Restricted Securities.
(c) Holders of Broker-Dealer Transfer Restricted
Securities. A Restricted Broker-Dealer is deemed to be a holder of Broker-
Dealer Transfer Restricted Securities (each, a "Holder") whenever such
Restricted Broker-Dealer owns Broker-Dealer Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible
under applicable law or Commission policy (after the procedures set forth in
Section 6(a) below have been complied with), the Company shall (i) cause to
be filed with the Commission as soon as practicable after the Closing Date,
but in no event later than 90 days after the Closing Date, a Registration
Statement under the Act relating to the Series B Notes (including any
Subsidiary Guarantees) and the Exchange Offer, (ii) use all commercially
reasonable efforts to cause such Registration Statement to become effective
at the earliest possible time, but in no event later than 150 days after the
Closing Date (which 150-day period shall be extended for a number of days
equal to the number of business days, if any, the Commission is officially
closed during such period), (iii) in connection with the foregoing, file
(A) all pre-effective amendments to such Registration Statement as may be
necessary in order to cause such Registration Statement to become effective,
(B) if applicable, a post-effective amendment to such Registration Statement
pursuant to Rule 430A under the Act and (C) cause all necessary filings in
connection with the registration and qualification of the Series B Notes
(including any Subsidiary Guarantees) to be made under the Blue Sky laws of
such jurisdictions as are necessary to permit Consummation of the Exchange
Offer, and (iv) upon the effectiveness of such Registration Statement,
commence the Exchange Offer. The Exchange Offer shall be on the appropriate
form permitting registration of the Series B Notes (including any Subsidiary
Guarantees) to be offered in exchange for the Transfer Restricted Securities
and to permit resales of Notes held by Broker-Dealers as contemplated by
Section 3(c) below.
(b) The Company shall cause the Exchange Offer
Registration Statement to be effective continuously and shall keep the
Exchange Offer open for a period of not less than the minimum period required
under applicable federal and state securities laws to Consummate the Exchange
Offer; provided, however, that in no event shall such period be less than 20
business days. The Company shall cause the Exchange Offer to comply with all
applicable federal and state securities laws. No securities other than the
Notes (including any Subsidiary Guarantees) shall be included in the Exchange
Offer Registration Statement. The Company shall use its best efforts to
cause the Exchange Offer to be Consummated on the earliest practicable date
after the Exchange Offer Registration Statement has become effective, but in
no event later than 30 business days thereafter.
(c) The Company shall indicate in a "Plan of
Distribution" section contained in the Prospectus contained in the Exchange
Offer Registration Statement that any Broker-Dealer who holds Series A Notes
that are Transfer Restricted Securities and that were acquired for its own
account as a result of market-making activities or other trading activities
(other than Transfer Restricted Securities acquired directly from the
Company), may exchange such Series A Notes pursuant to the Exchange Offer;
however, such Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Act and must, therefore, deliver a Prospectus meeting the
requirements of the Act in connection with any resales of the Series B Notes
received by such Broker-Dealer in the Exchange Offer, which Prospectus
delivery requirement may be satisfied by the delivery by such Broker-Dealer
of the Prospectus contained in the Exchange Offer Registration Statement.
Such "Plan of Distribution" section shall also contain all other information
with respect to such resales by Broker-Dealers that the Commission may
require in order to permit such resales pursuant thereto, but such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose the amount of
Notes held by any such Broker-Dealer except to the extent required by the
Commission.
The Company shall use all commercially reasonable
efforts to keep the Exchange Offer Registration Statement continuously
effective, supplemented and amended as required by the provisions of Section
6(d) below to the extent necessary to ensure that it is available for resales
of Notes acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to ensure that it
conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of 180 days from the date on which the Exchange Offer Registration
Statement is declared effective.
The Company shall provide sufficient copies of the
latest version of such Prospectus to Broker-Dealers promptly upon request at
any time during such 180 day period in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION; MARKET-MAKER PROSPECTUS
(a) Shelf Registration. If (i) the Company is not
required to file an Exchange Offer Registration Statement or to Consummate
the Exchange Offer because the Exchange Offer is not permitted by applicable
law or Commission policy (after the procedures set forth in Section 6(a)
below have been complied with) or (ii) if any Holder of Transfer Restricted
Securities that is a "qualified institutional buyer," as such term is defined
in Rule 144A under the Act or an institutional "accredited investor," as such
term is defined in Rule 501(a)(1), (2), (3) and (7) under the Act shall
notify the Company prior to the 20th business day following the Consummation
of the Exchange Offer that such Holder alone or together with holders who
hold in the aggregate at least $1.0 million in principal amount of Series A
Notes (A) is prohibited by applicable law or Commission policy from
participating in the Exchange Offer, or (B) may not resell the Series B Notes
acquired by it in the Exchange Offer to the public without delivering a
prospectus and that the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by
such Holder, or (C) is a Broker-Dealer and holds Series A Notes acquired
directly from the Company or one of its affiliates, then the Company shall
(x) cause to be filed a shelf
Registration Statement pursuant to Rule 415
under the Act, which may be an amendment to
the Exchange Offer Registration Statement
(in either event, the "Shelf Registration
Statement") on or prior to the earliest to
occur of (1) the 30th day after the date on
which the Company determines that it is not
required to file the Exchange Offer
Registration Statement, or permitted to
Consummate the Exchange Offer and (2) the
30th day after the date on which the
Company receives notice from a Holder of
Transfer Restricted Securities as
contemplated by clause (ii) of paragraph
(a) above (such earliest date being the
"Shelf Filing Deadline"), which Shelf
Registration Statement shall provide for
resales of all Transfer Restricted
Securities the Holders of which shall have
provided the information required pursuant
to Section 4(b) hereof; and
(y) use all commercially
reasonable efforts to cause such Shelf
Registration Statement to be declared
effective by the Commission on or before
the 90th day after the Shelf Filing
Deadline.
The Company shall use all commercially reasonable to keep such Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and (d) hereof to the extent
necessary to ensure that it is available for resales of Notes by the Holders
of Transfer Restricted Securities entitled to the benefit of this Section
4(a), and to ensure that it conforms with the requirements of this Agreement,
the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of at least two years following the
Closing Date or such shorter period that will terminate when all Notes
covered by the Shelf Registration Statement have been sold pursuant to the
Shelf Registration Statement or become eligible for resale pursuant to Rule
144 without volume or other restrictions.
(b) Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement. No Holder of Transfer
Restricted Securities may include any of its Transfer Restricted Securities
in any Shelf Registration Statement pursuant to this Agreement unless and
until such Holder furnishes to the Company in writing, within 10 business
days after receipt of a request therefor, such information as the Company may
reasonably request for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein. No
Holder of Transfer Restricted Securities shall be entitled to Liquidated
Damages pursuant to Section 5 hereof unless and until such Holder shall have
used its best efforts to provide all such reasonably requested information.
Each Holder as to which any Shelf Registration Statement is being effected
agrees to furnish promptly to the Company all information required to be
disclosed in order to make the information previously furnished to the
Company by such Holder not materially misleading.
(c) Market-Maker Prospectus. The Company acknowledges
that any Restricted Broker-Dealer holding Broker-Dealer Transfer Restricted
Securities may not resell such Broker-Dealer Transfer Restricted Securities
without delivering a Prospectus. Consequently, on the date that the Exchange
Offer Registration Statement is filed with the Commission, the Company shall
file a Registration Statement (which may be the Exchange Offer Registration
Statement or the Shelf Registration Statement if permitted by the rules and
regulations of the Commission) and shall use their best efforts to cause such
Registration Statement to be declared effective by the Commission on or prior
to the Consummation of the Exchange Offer. The Company shall use all
commercially reasonable efforts to keep such Registration Statement
continuously effective, supplemented and amended as required by the
provisions of Sections 6(c) and (d) hereof to the extent necessary to ensure
that it is available for resales of Broker-Dealer Transfer Restricted
Securities by Restricted Broker-Dealers, and to ensure that it conforms with
the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, until such time
as all Restricted Broker-Dealers determine in their judgment that they are no
longer required to deliver a Prospectus in connection with sales of Broker-
Dealer Transfer Restricted Securities. The Prospectus included in such
Registration Statement is referred to in this Agreement as a "Market-Maker
Prospectus."
SECTION 5. LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by
this Agreement is not filed with the Commission on or prior to the date
specified for such filing in sections 3(a), 4(a), and 4(c), as applicable,
(ii) any of such required Registration Statements has not been declared
effective by the Commission on or prior to the date specified for such
effectiveness in sections 3(a), 4(a), and 4(c), as applicable, (the
"Effectiveness Target Date"), (iii) the Exchange Offer has not been
Consummated within 30 business days after the Effectiveness Target Date with
respect to the Exchange Offer Registration Statement or (iv) any Registration
Statement required by this Agreement is filed and declared effective but
shall thereafter cease to be effective or fail to be usable for its intended
purpose without being succeeded immediately by a post-effective amendment to
such Registration Statement that cures such failure and that is itself
immediately declared effective (each such event referred to in clauses (i)
through (iv), a "Registration Default"), the Company agrees to pay liquidated
damages to each Holder of Transfer Restricted Securities with respect to the
first 90-day period immediately following the occurrence of such Registration
Default, in an amount equal to $.05 per week per $1,000 principal amount of
Transfer Restricted Securities held by such Holder for each week or portion
thereof that the Registration Default continues. The amount of the
liquidated damages shall increase by an additional $.05 per week per $1,000
in principal amount of Transfer Restricted Securities with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up
to a maximum amount of liquidated damages of $.50 per week per $1,000
principal amount of Transfer Restricted Securities. All accrued liquidated
damages shall be paid to Record Holders by the Company by wire transfer of
immediately available funds or by federal funds check on each Damages Payment
Date, as provided in the Indenture. Following the cure of all Registration
Defaults relating to any particular Transfer Restricted Securities, the
accrual of liquidated damages with respect to such Transfer Restricted
Securities will cease.
All payment obligations of the Company set forth in the
preceding paragraph that are outstanding with respect to any Transfer
Restricted Security at the time such security ceases to be a Transfer
Restricted Security shall survive until such time as all such payment
obligations with respect to such Security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In
connection with the Exchange Offer, the Company shall comply with all of the
provisions of Section 6(d) below, shall use all commercially reasonable
efforts to effect such exchange to permit the sale of Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof, and shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the
Company there is a question as to whether the Exchange Offer
is permitted by applicable law, the Company hereby agrees to
seek a no-action letter or other favorable decision from the
Commission allowing the Company to Consummate an Exchange
Offer for such Series A Notes. The Company hereby agrees to
pursue the issuance of such a decision to the Commission
staff level but shall not be required to take commercially
unreasonable action to effect a change of Commission policy.
The Company hereby agrees, however, to (A) participate in
telephonic conferences with the Commission, (B) deliver to
the Commission staff an analysis prepared by counsel to the
Company setting forth the legal bases, if any, upon which
such counsel has concluded that such an Exchange Offer
should be permitted and (C) diligently pursue a resolution
(which need not be favorable) by the Commission staff of
such submission.
(ii) As a condition to its participation in the
Exchange Offer pursuant to the terms of this Agreement, each
Holder of Transfer Restricted Securities shall furnish, upon
the request of the Company, prior to the Consummation
thereof, a written representation to the Company (which may
be contained in the letter of transmittal contemplated by
the Exchange Offer Registration Statement) to the effect
that (A) it is not an affiliate of the Company, (B) it is
not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate
in, a distribution of the Series B Notes to be issued in the
Exchange Offer and (C) it is acquiring the Series B Notes in
its ordinary course of business. In addition, all such
Holders of Transfer Restricted Securities shall otherwise
cooperate in the Company's preparations for the Exchange
Offer. Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Exchange Offer
to participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this Agreement
rely on the position of the Commission enunciated in Xxxxxx
Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon
Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Xxxxxxxx &
Sterling dated July 2, 1993, and similar no-action letters
(including any no-action letter obtained pursuant to clause
(i) above), and (2) must comply with the registration and
prospectus delivery requirements of the Act in connection
with a secondary resale transaction and that such a
secondary resale transaction should be covered by an
effective Registration Statement containing the selling
security holder information required by Item 507 or 508, as
applicable, of Regulation S-K if the resales are of Series B
Notes obtained by such Holder in exchange for Series A Notes
acquired by such Holder directly from the Company.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company shall provide a
supplemental letter to the Commission (A) stating that the
Company is registering the Exchange Offer in reliance on the
position of the Commission enunciated in Exxon Capital
Holdings Corporation (available May 13, 1988), Xxxxxx
Xxxxxxx and Co., Inc. (available June 5, 1991) and, if
applicable, any no-action letter obtained pursuant to clause
(i) above and (B) including a representation that the
Company has not entered into any arrangement or
understanding with any Person to distribute the Series B
Notes to be received in the Exchange Offer and that, to the
best of the Company's information and belief, each Holder
participating in the Exchange Offer is acquiring the Series
B Notes in its ordinary course of business and has no
arrangement or understanding with any Person to participate
in the distribution of the Series B Notes received in the
Exchange Offer.
(b) Shelf Registration Statement. In connection with
the Shelf Registration Statement, the Company shall comply with all the
provisions of Section 6(d) below and shall use all commercially reasonable
efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof, and pursuant thereto the Company will as
expeditiously as possible prepare and file with the Commission a Registration
Statement relating to the registration on any appropriate form under the Act,
which form shall be available for the sale of the Transfer Restricted
Securities in accordance with the intended method or methods of distribution
thereof.
(c) Market-Maker Prospectus. In connection with any
Registration Statement filed pursuant to Section 4(c) of this Agreement, the
Company will comply with all of the provisions of Section 6(d) below (other
than sub-sections (xiii), (xiv), (xv), (xvii) and (xx)) until such time as
all Restricted Broker-Dealers determine in their judgment that they are no
longer required to deliver Market-Maker Prospectuses in connection with sales
of Broker-Dealer Transfer Restricted Securities. The Company shall use all
commercially reasonable efforts to deliver Market-Maker Prospectuses to all
Restricted Broker-Dealers immediately upon the effectiveness of the
Registration Statement and from time to time thereafter upon request, in such
quantities as such Restricted Broker-Dealer shall require.
(d) General Provisions. In connection with any
Registration Statement and any Prospectus required by this Agreement to
permit the sale or resale of Transfer Restricted Securities (including,
without limitation, any Registration Statement and the related Prospectus
required to permit resales of Notes by Broker-Dealers) and Broker-Dealer
Transfer Restricted Securities, the Company shall:
(i) use all commercially reasonable efforts to
keep such Registration Statement continuously effective and
provide all requisite financial statements (including, if
required by the Act or any regulation thereunder, financial
statements of any Guarantors) for the period specified in
Section 3 or 4 of this Agreement, as applicable; upon the
occurrence of any event that would cause any such
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 or Broker-Dealer Transfer Restricted
Securities during the period required by this Agreement, the
Company shall file promptly an appropriate amendment to such
Registration Statement, in the case of clause (A),
correcting any such misstatement or omission, and, in the
case of either clause (A) or (B), use all commercially
reasonable efforts to cause such amendment to be declared
effective and such Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as
soon as practicable thereafter. Notwithstanding the
foregoing, at any time after Consummation of the Exchange
Offer, the Company may allow the Shelf Registration
Statement or Market-Maker Prospectus and the related
Registration Statement to cease to become effective and
usable if (x) the board of directors of the Company
determines in good faith that it is in the best interests of
the Company not to disclose the existence of or facts
surrounding any proposed or pending material corporate
transaction involving the Company, and the Company notifies
the Holders within two business days after the Board of
Directors makes such determination, or (y) the Prospectus
contained in the Shelf Registration Statement or the Market-
Maker Prospectus, as the case may be, contains an untrue
statement of the material fact or omits to state a material
fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading; provided that the two-year period referred to in
Section 4(a) hereof during which the Shelf Registration
Statement is required to be effective and usable shall be
extended by the number of days during which such
Registration Statement was not effective or usable pursuant
to the foregoing provisions;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth in
Section 3 or 4 hereof, as applicable; cause the Prospectus
to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424
under the Act, and to comply fully with the applicable
provisions of Rules 424 and 430A under the Act in a timely
manner; and comply with the provisions of the Act with
respect to the disposition of all securities covered by such
Registration Statement during the applicable period in
accordance with the intended method or methods of
distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling
Holders of Transfer Restricted Securities and, following the
Consummation of the Exchange Offer, Holders of Broker
Dealer Transfer Restricted Securities, promptly and, if
requested by such Persons, to confirm such advice in
writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and,
with respect to any Registration Statement or any post-
effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of
any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by
any state securities commission of the qualification of the
Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities, as applicable, for offering or sale
in any jurisdiction, or the initiation of any proceeding for
any of the preceding purposes, (D) of the existence of any
fact or the happening of any event that makes any statement
of a material fact made in the 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
Registration Statement or the Prospectus in order to make
the statements therein not misleading. If at any time the
Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption
from qualification of the Transfer Restricted Securities or
Broker-Dealer Transfer Restricted Securities, as applicable,
under state securities or Blue Sky laws, the Company shall
use all commercially reasonable efforts to obtain the
withdrawal or lifting of such order at the earliest possible
time;
(iv) furnish to each of the selling Holders of
Transfer Restricted Securities or Holders of Broker-Dealer
Transfer-Restricted Securities and each of the
underwriter(s), if any, before filing with the Commission,
copies of any Registration Statement or any Prospectus
included therein or any amendments or supplements to any
such Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing
of such Registration Statement), which documents will be
subject to the review of such Holders and underwriter(s), if
any, for a period of at least five business days, and the
Company will not file any such Registration Statement or
Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such
documents incorporated by reference) if a selling Holder of
Transfer Restricted Securities or a Holder of Broker-Dealer
Transfer Restricted Securities, as applicable, covered by
such Registration Statement or the underwriter(s), if any,
shall not have had an opportunity to participate in the
preparation thereof;
(v) promptly prior to the filing of any document
that is to be incorporated by reference into a Registration
Statement or Prospectus, provide copies of such document to
the selling Holders or the Holders of Broker-Dealer Transfer
Restricted Securities, as applicable, and to the
underwriter(s), if any, make the Company's representatives
available for discussion of such document and other
customary due diligence matters, and include such
information in such document prior to the filing thereof as
such selling Holders or the Holders of Broker-Dealer
Transfer Restricted Securities, as applicable, or
underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times at the
Company's principal place of business for inspection by the
selling Holders of Transfer Restricted Securities, any
underwriter participating in any disposition pursuant to
such Registration Statement, and any attorney or accountant
retained by such selling Holders or any of the
underwriter(s) who shall certify to the Company that they
have a current intention to sell Transfer Restricted
Securities or Broker-Dealer Transfer Restricted Securities
pursuant to a Shelf Registration Statement or Market-Maker
Prospectus, and, following the Consummation of the Exchange
Offer, the Holders of Broker-Dealer Transfer Restricted
Securities, such financial and other information of the
Company as reasonably requested and cause the Company's
officers, directors and employees to respond to such
inquiries as shall be reasonably necessary, in the
reasonable judgment of counsel to such Holders, to conduct a
reasonable investigation; provided, however, that each such
party shall be required to maintain in confidence and not to
disclose to any other person any information or records
reasonably designated by the Company in writing as being
confidential, until such time as (A) such information
becomes a matter of public record (whether by virtue of its
inclusion in such Registration Statement or otherwise), or
(B) such person shall be required so to disclose such
information pursuant to the subpoena or order of any court
or other governmental agency or body having jurisdiction
over the matter (subject to the requirements of such order,
and only after such person shall have given the Company
prompt prior written notice of such requirement), or (C)
such information is required to be set forth in such
Registration Statement or the Prospectus included therein or
in an amendment to such Registration Statement or an
amendment or supplement to such Prospectus in order that
such Registration Statement, Prospectus, amendment or
supplement, as the case may be, does not contain an untrue
statement of a material fact or omit to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading;
(vii) if requested by any selling Holders of
Transfer Restricted Securities or Holders of Broker-Dealer
Transfer Restricted Securities, as applicable, or the
underwriter(s), if any, promptly incorporate in any
Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriter(s), if
any, may reasonably request to have included therein,
including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted Securities
or Broker-Dealer Transfer Restricted Securities, as
applicable, information with respect to the principal
amount of Transfer Restricted Securities or Broker-Dealer
Transfer Restricted Securities, as applicable, being sold to
such underwriter(s), the purchase price being paid therefor
and any other terms of the offering of the Transfer
Restricted Securities or Broker-Dealer Transfer-Restricted
Securities, as applicable, to be sold in such offering; and
make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the
Company is notified of the matters to be incorporated in
such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder of Transfer
Restricted Securities or Holders of Broker-Dealer Transfer
Restricted Securities, as applicable, and each of the
underwriter(s), if any, without charge, at least one copy of
the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
(ix) deliver to each selling Holder of Transfer
Restricted Securities and each of the underwriter(s), if
any, and each Holder of Broker-Dealer Transfer Restricted
Securities, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request;
the Company hereby consents to the use of the Prospectus and
any amendment or supplement thereto by each of the selling
Holders and each of the underwriter(s), if any, and each
Holder of Broker-Dealer Transfer Restricted Securities, in
connection with the offering and the sale of the Transfer
Restricted Securities and Broker-Dealer Transfer Restricted
Securities, as applicable, covered by the Prospectus or any
amendment or supplement thereto;
(x) enter into such agreements (including an
underwriting agreement), and make such representations and
warranties, and take all such other actions in connection
therewith in order to expedite or facilitate the disposition
of the Transfer Restricted Securities and Broker-Dealer
Transfer Restricted Securities, as applicable, pursuant to
any Registration Statement contemplated by this Agreement,
all to such extent as may be requested by the Initial
Purchaser or, in the case of registration for resale of
Transfer Restricted Securities pursuant to the Shelf
Registration Statement, by any Holder or Holders of Transfer
Restricted Securities who hold at least 25% in aggregate
principal amount of such class of Transfer Restricted
Securities or, in the case of Broker-Dealer Transfer
Restricted Securities, by any Holder of Broker-Dealer
Transfer Restricted Securities; provided, that, the Company
shall not be required to enter into any such agreement more
than once with respect to all of the Transfer Restricted
Securities and, in the case of a Shelf Registration
Statement, may delay entering into such agreement if the
Board of Directors of the Company determines in good faith
that it is in the best interests of the Company not to
disclose the existence of or facts surrounding any proposed
or pending material corporate transaction involving the
Company; and whether or not an underwriting agreement is
entered into and whether or not the registration is an
Underwritten Registration, the Company shall:
(A) furnish to the Initial Purchaser, the Holders
of Transfer Restricted Securities who hold at least 25%
in aggregate principal amount of such class of Transfer
Restricted Securities (in the case of a Shelf
Registration Statement), each Holder of Broker-Dealer
Transfer Restricted Securities and each underwriter, if
any, in such substance and scope as they may request
and as are customarily made in connection with an
offering of debt securities pursuant to a Registration
Statement (i) upon the effective date of any
Registration Statement (and if such Registration
Statement contemplates an Underwritten Offering of
Transfer Restricted Securities or Broker-Dealer
Transfer Restricted Securities, as applicable, upon the
date of the closing under the underwriting agreement
related thereto) and (ii) upon the filing of any
amendment or supplement to any Registration Statement
or any other document that is incorporated in any
Registration Statement by reference and includes
financial data with respect to a fiscal quarter or
year:
(1) a certificate, dated the date of
effectiveness of the Shelf Registration Statement
signed by (y) the Chairman of the Board, the
President or any Vice President and (z) the Chief
Financial Officer of the Company confirming, as of
the date thereof, the matters set forth in
paragraph (j) of Section 7 of the Purchase
Agreement and such other matters as such parties
may reasonably request;
(2) an opinion, dated the date of
effectiveness of the Shelf Registration Statement,
as the case may be, of counsel for the Company
covering the matters set forth in paragraphs (c),
(d) and (e) of Section 7 of the Purchase Agreement
and such other matter as such parties may
reasonably request, and in any event including a
statement to the effect that such counsel has
participated in conferences with officers and
other representatives of the Company,
representatives of the independent public
accountants for the Company, the Initial
Purchasers' representatives and the Initial
Purchasers' counsel in connection with the
preparation of such Registration Statement and the
related Prospectus and have considered the matters
required to be stated therein and the statements
contained therein, although such counsel has not
independently verified the accuracy, completeness
or fairness of such statements; and that such
counsel advises that, on the basis of the
foregoing (relying as to materiality to a large
extent upon facts provided to such counsel by
officers and other representatives of the Company
and without independent check or verification), no
facts came to such counsel's attention that caused
such counsel to believe that the applicable
Registration Statement, at the time such
Registration Statement or any post-effective
amendment thereto became effective, and, in the
case of the Exchange Offer Registration Statement,
as of the date of Consummation, contained an
untrue statement of a material fact or omitted to
state a material fact required to be stated
therein or necessary to make the statements
therein not misleading, or that the Prospectus
contained in such Registration Statement as of its
date and, in the case of the opinion dated the
date of Consummation of the Exchange Offer, as of
the date of Consummation, contained an untrue
statement of a material fact or omitted to state a
material fact necessary in order to make the
statements therein, in light of the circumstances
under which they were made, not misleading. Such
counsel may state further that such counsel
assumes no responsibility for, and has not
independently verified, the accuracy, completeness
or fairness of the financial statements, notes and
schedules and other financial data included in any
Registration Statement contemplated by this
Agreement or the related Prospectus; and
(3) a customary comfort letter, dated as of
the date of Consummation of the Exchange Offer or
the date of effectiveness of the Shelf
Registration Statement, as the case may be, from
the Company's independent accountants, in the
customary form and covering matters of the type
customarily covered in comfort letters by
underwriters in connection with primary
underwritten offerings, and affirming the matters
set forth in the comfort letters delivered
pursuant to Section 7 of the Purchase Agreement,
without exception;
(B) set forth in full or incorporated by
reference in the underwriting agreement, if any, the
indemnification provisions and procedures of Section 8
hereof with respect to all parties to be indemnified
pursuant to said Section; and
(C) deliver such other documents and certificates
as may be reasonably requested by such parties to
evidence compliance with clause (A) above and with any
customary conditions contained in the underwriting
agreement or other agreement entered into by the
Company pursuant to this clause (x), if any.
(xi) prior to any public offering of Transfer
Restricted Securities, or Broker-Dealer Transfer Restricted
Securities, as applicable, cooperate with the selling
Holders of Transfer Restricted Securities, the Holders of
Broker-Dealer Transfer Restricted Securities, the
underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the
Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities, as applicable, under the securities
or Blue Sky laws of such jurisdictions as the selling
Holders of Transfer Restricted Securities or Holders of
Broker-Dealer Transfer Restricted Securities or
underwriter(s) 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 or Broker-Dealer Transfer Restricted Securities,
as applicable, covered by the Shelf Registration Statement
filed pursuant to Section 4 hereof; provided, however, that
the Company shall not be required to register or qualify as
a foreign corporation where it is not now so qualified or to
take any action that would subject it to the service of
process in suits or to taxation, other than as to matters
and transactions relating to the Registration Statement, in
any jurisdiction where it is not now so subject;
(xii) shall issue, upon the request of any Holder of
Series A Notes covered by the Shelf Registration Statement,
Series B Notes, having an aggregate principal amount equal
to the aggregate principal amount of Series A Notes
surrendered to the Company by such Holder in exchange
therefor or being sold by such Holder; such Series B Notes
to be registered in the name of such Holder or in the name
of the purchaser(s) of such Notes, as the case may be; in
return, the Series A Notes held by such Holder shall be
surrendered to the Company for cancellation;
(xiii) cooperate with the selling Holders of Transfer
Restricted Securities and the underwriter(s), if any, to
facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and enable
such Transfer Restricted Securities to be in such
denominations and registered in such names as the Holders or
the underwriter(s), if any, may request at least two
business days prior to any sale of Transfer Restricted
Securities made by such underwriter(s);
(xiv) use its best efforts to cause the Transfer
Restricted Securities or Broker-Dealer Transfer Restricted
Securities, as applicable, covered by the Registration
Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof or the underwriter(s),
if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in
clause (xi) above;
(xv) if any fact or event contemplated by clause
(d)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, or Broker-Dealer Transfer Restricted
Securities, as applicable, the Prospectus will not contain
an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not
misleading;
(xvi) provide a CUSIP number for all Transfer
Restricted Securities not later than the effective date of
the Registration Statement and provide the Trustee under the
Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for
deposit with the Depository Trust Company;
(xvii) cooperate and assist in any filings required
to be made with the NASD and in the performance of any due
diligence investigation by any underwriter (including any
"qualified independent underwriter") that is required to be
retained in accordance with the rules and regulations of the
NASD;
(xviii) otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission, and
make generally available to its security holders, as soon as
practicable, a consolidated earnings statement meeting the
requirements of Rule 158 (which need not be audited) for the
twelve-month period (A) commencing at the end of any fiscal
quarter in which Transfer Restricted Securities are sold to
underwriters in a firm or best efforts Underwritten Offering
or (B) if not sold to underwriters in such an offering,
beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the
Registration Statement;
(xix) cause the Indenture to be qualified under the
TIA not later than the effective date of the first
Registration Statement required by this Agreement, 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
all commercially reasonable efforts to cause the Trustee 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;
(xx) provide promptly to each Holder upon request
each document filed with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Exchange
Act; and
(xxi) cause each Guarantor upon the creation or
acquisition by the Company of such Guarantor, to execute a
counterpart to this Agreement in the form attached hereto as
Annex A and to deliver such counterpart, together with an
opinion of counsel as to the enforceability thereof against
such entity, to the Initial Purchasers no later than five
business days following the execution thereof.
Each Holder agrees by acquisition of a Transfer
Restricted Security or Broker-Dealer Transfer Restricted Securities, as
applicable, that, upon receipt of any notice from the Company of the
existence of any fact of the kind described in Section 6(d)(iii)(D) hereof,
such Holder will forthwith discontinue disposition of Transfer Restricted
Securities or Broker-Dealer Transfer Restricted Security pursuant to the
applicable Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 6(d)(xvi)
hereof, or until it is advised in writing (the "Advice") by the Company that
the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Company, each Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Transfer Restricted Securities or Broker-Dealer Transfer Restricted Security,
as applicable, that was current at the time of receipt of such notice. In
the event the Company shall give any such notice, the time period regarding
the effectiveness of such Registration Statement set forth in Section 3 or 4
hereof, as applicable, shall be extended by the number of days during the
period from and including the date of the giving of such notice pursuant to
Section 6(d)(iii)(D) hereof to and including the date when each selling
Holder covered by such Registration Statement shall have received the copies
of the supplemented or amended Prospectus contemplated by Section 6(d)(xv)
hereof or shall have received the Advice.
The Company may require each Holder of Transfer
Restricted Securities or Broker-Dealer Transfer Restricted Securities as to
which any registration is being effected to furnish to the Company such
information regarding such Holder and such Holder's intended method of
distribution of the applicable Transfer Restricted Securities or Broker-
Dealer Transfer Restricted Securities as the Company may from time to time
reasonably request in writing, but only to the extent that such information
is required in order to comply with the Act. Each such Holder agrees to
notify the Company as promptly as practicable of (i) any inaccuracy or change
in information previously furnished by such Holder to the Company or (ii) the
occurrence of any event, in either case, as a result of which any Prospectus
relating to such registration contains or would contain an untrue statement
of a material fact regarding such Holder or such Holder's intended method of
distribution of the applicable Transfer Restricted Securities or Broker-
Dealer Transfer Restricted Securities or omits to state any material fact
regarding such Holder or such Holder's intended method of distribution of the
applicable Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities required to be stated therein or necessary to make the
statements therein not misleading and promptly to furnish to the Company any
additional information required to correct and update any previously furnish
to the Company any additional information required to correct and update any
previously furnished information or required so that such Prospectus shall
not contain, with respect to such Holder or the distribution of the
applicable Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading.
SECTION 7. REGISTRATION EXPENSES
All expenses incident to the Company's performance of
or compliance with this Agreement will be borne by the Company regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses (including
filings made by any Initial Purchaser or Holder with the NASD (and, if
applicable, the fees and expenses of any "qualified independent underwriter"
and its counsel that may be required by the rules and regulations of the
NASD)); (ii) all fees and expenses of compliance with federal securities and
state Blue Sky or securities laws; (iii) all expenses of printing (including
printing certificates for the Series B Notes to be issued in the Exchange
Offer and printing of Prospectuses), messenger and delivery services; (iv)
all fees and disbursements of counsel for the Company and the Holders of
Transfer Restricted Securities; and (v) all fees and disbursements of
independent certified public accountants of the Company (including the
expenses of any special audit and comfort letters required by or incident to
such performance).
The Company will, in any event, bear its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expenses
of any annual audit and the fees and expenses of any Person, including
special experts, retained by the Company.
SECTION 8. INDEMNIFICATION
(a) The Company shall indemnify and hold harmless each
Holder of Transfer Restricted Securities or Broker Dealer Transfer Restricted
Securities, its officers and employees and each person, if any, who controls
any such Holders, within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases, sales and registration of Notes),
to which that Holder, officer, employee or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained (A) in any
Registration Statement or Prospectus or in any amendment or supplement
thereto or (B) in any blue sky application or other document prepared or
executed by the Company (or based upon any written information furnished by
the Company) specifically for the purpose of qualifying any or all of the
Notes under the securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called a "Blue Sky
Application"), (ii) the omission or alleged omission to state in any
Registration Statement or Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact required to be
stated therein or necessary to make the statements therein not misleading or
(iii) any act or failure to act or any alleged act or failure to act by any
Holder in connection with, or relating in any manner to, the Notes or the
offering contemplated hereby, and which is included as part of or referred to
in any loss, claim, damage, liability or action arising out of or based upon
matters covered by clause (i) or (ii) above (provided that the Company shall
not be liable under this clause (iii) to the extent that it is determined in
a final judgment by a court of competent jurisdiction that such loss, claim,
damage, liability or action resulted directly from any such acts or failures
to act undertaken or omitted to be taken by such Holder through its gross
negligence or willful misconduct), and shall reimburse each Holder and each
such officer, employee or controlling person promptly upon demand for any
legal or other expenses reasonably incurred by that Xxxxxx, officer, employee
or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action
as such expenses are incurred; provided, however, that the Company shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any
Registration Statement or Prospectus, or in any such amendment or supplement,
or in any Blue Sky Application, in reliance upon and in conformity with
written information concerning such Holder furnished to the Company by or on
behalf of any Holder specifically for inclusion therein. The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to any Holder or to any officer, employee or controlling
person of that Holder.
(b) Each Holder, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and employees, each of
its directors, and each person, if any, who controls the Company within the
meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company or any such director, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained (A) in any
Registration Statement or Prospectus, or in any amendment or supplement
thereto, or (B) in any Blue Sky Application or (ii) the omission or alleged
omission to state in any Registration Statement or Prospectus, or in any
amendment or supplement thereto, or in any Blue Sky Application any material
fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information concerning
such Holders furnished to the Company by or on behalf of that Xxxxxx
specifically for inclusion therein, and shall reimburse the Company and any
such director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to
any liability which any Holder may otherwise have to the Company or any such
director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have under this Section
8 except to the extent it has been materially prejudiced by such failure and,
provided further, that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have to an indemnified party
otherwise than under this Section 8. If any such claim or action shall be
brought against an indemnified party, and it shall notify the indemnifying
party thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party
in writing, (ii) such indemnified party shall have been advised by such
counsel that there may be one or more legal defenses available to it which
are different from or additional to those available to the indemnifying party
and in the reasonable judgement of such counsel it is advisable for such
indemnified party to employ separate counsel or (iii) the indemnifying party
has failed to assume the defense of such action and employ counsel reasonably
satisfactory to the indemnified party, in which case, if such indemnified
party notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses
of more than one separate firm of attorneys (in addition to one local
counsel) at any time for all such indemnified parties, if the indemnified
parties under this Section 8 consist of any Initial Purchaser or any of their
respective officers, employees or controlling persons, or by the Company, if
the indemnified parties under this Section consist of the Company or any of
the Company's directors, officers, employees or controlling persons. Each
indemnified party, as a condition of the indemnity agreements contained in
Section 8, shall use all commercially reasonable efforts to cooperate with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent
of the indemnifying party or if there be a final judgment of the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of
such settlement or judgment.
(d) If the indemnification provided for in this
Section 8 shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party under Section 8(a) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company, on the one hand, and
the Holders on the other, from the offering of the Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and the Holders on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Holders on the other with respect to such offering shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Series A Notes purchased under the Purchase Agreement (before
deducting expenses) received by the Company, on the one hand, and the total
discounts and commissions received by the Holders with respect to the Series
A Notes purchased under this Agreement, on the other hand, bear to the total
gross proceeds from the offering of the Series A Notes under the Purchase
Agreement, in each case as set forth in the table on the cover page of the
Offering Memorandum. The relative fault shall be determined by reference to
whether the 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 or the Holders, the intent of the parties and their relative
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 contributions pursuant to this Section 8(d) were to
be determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above
in this Section shall be deemed to include, for purposes of this Section
8(d), 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 8(d), no Holder shall be
required to contribute any amount in excess of the amount by which the net
proceeds received by it in connection with its sale of Notes exceeds the
amount of any damages which such Holder has otherwise paid or become liable
to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute as provided in
this Section 8(d) are several and not joint.
SECTION 9. RULE 144A
The Company hereby agrees with each Holder of Transfer
Restricted Securities, during any period in which the Company is not subject
to Section 13 or 15(d) of the Exchange Act within the two-year period
following the Closing Date, and each Holder of Broker-Dealer Transfer
Restricted Securities, for so long as any Broker-Dealer Transfer Restricted
Securities remain outstanding, to make available to any Holder or beneficial
owner of Transfer Restricted Securities or any Holder or Broker-Dealer
Transfer Restricted Securities, in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities from such Holder
or beneficial owner, the information required by Rule 144A(d)(4) under the
Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten
Registration hereunder unless such Xxxxxx (a) agrees to sell such Xxxxxx's
Transfer Restricted Securities or Broker-Dealer Transfer Restricted
Securities, as applicable, on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered
by the Shelf Registration Statement who desire to do so may sell such
Transfer Restricted Securities in an Underwritten Offering at such Holders'
expense. In any such Underwritten Offering, the investment banker or
investment bankers and manager or managers that will administer the offering
will be selected by the Holders of a majority in aggregate principal amount
of the Transfer Restricted Securities included in such offering; provided,
that such investment bankers and managers must be reasonably satisfactory to
the Company.
SECTION 12. MISCELLANEOUS
(a) Remedies. The Company agrees that monetary
damages (including the liquidated damages contemplated hereby) would not be
adequate compensation for any loss incurred by reason of a breach by it of
the provisions of this Agreement and hereby agree to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not,
on or after the date of this Agreement, enter into any agreement with respect
to its securities that is inconsistent with the rights granted to the Holders
in this Agreement or otherwise conflicts with the provisions hereof. Except
as disclosed in the Final Offering Memorandum, the Company has not previously
entered into any agreement granting any registration rights with respect to
its securities to any Person. The rights granted to the Holders hereunder do
not in any way conflict with and are not inconsistent with the rights granted
to the holders of the Company's securities under any agreement in effect on
the date hereof.
(c) Adjustments Affecting the Notes. The Company will
not take any action, or permit any change to occur, with respect to the Notes
that would materially and adversely affect the ability of the Holders to
Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or
consents to or departures from the provisions hereof may not be given unless
the Company has obtained the written consent of Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities.
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of Holders whose
securities are being tendered pursuant to the Exchange Offer and that does
not affect directly or indirectly the rights of other Holders whose
securities are not being tendered pursuant to such Exchange Offer may be
given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered or registered.
(e) 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), telex, telecopier, 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, with a
copy to the Registrar under the Indenture; and
(ii) if to the Company:
L-3 Communications Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000,
Attention: Chief Financial Officer
(Fax: 000-000-0000),
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX, 00000
Attention: Xxxxxx X. Xxxxxx
(Fax: 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 answered back, if telexed; when receipt
acknowledged, if telecopied; and on the next business day, if timely
delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other
communications shall be concurrently delivered by the Person giving the same
to the Trustee at the address specified in the Indenture.
(f) 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 or Restricted Broker Dealers;
provided, however, that this Agreement shall not inure to the benefit of or
be binding upon a successor or assign of a Holder unless and to the extent
such successor or assign acquired Transfer Restricted Securities or Broker
Dealer Transfer Restricted Securities from such Holder.
(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 AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(j) 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.
(k) Entire Agreement. This Agreement together with
the other Operative Documents (as defined in the Purchase Agreement) is
intended by the parties as a final expression of their agreement and 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.
[Signature pages follow]
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
L-3 Communications Corporation
By: ______________________________
Name:
Title:
Xxxxxx Brothers Inc.
BancAmerica Securities, Inc.
By Xxxxxx Brothers Inc.
By: __________________________________
Authorized Representative
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
L-3 Communications Corporation
By: ______________________________
Name:
Title:
Xxxxxx Brothers Inc.
BancAmerica Securities, Inc.
By Xxxxxx Brothers Inc.
By: __________________________________
Authorized Representative
Annex A
------
Counterpart To Registration Rights Agreement
--------------------------------------------
The undersigned hereby absolutely, unconditionally and
irrevocably agrees (as a "Guarantor") to make all commercially reasonable
efforts to include its Subsidiary Guarantee in any Registration Statement
required to be filed by the Company pursuant to the Registration Rights
Agreement, dated as of April 30, 1997, (the "Registration Rights Agreement")
by and among L-3 Communications Corporation, a Delaware corporation, Xxxxxx
Brothers Inc. and BancAmerica Securities, Inc.; to make all commercially
reasonable efforts to cause such Registration Statement to become effective
as specified in the Registration Rights Agreement; and to otherwise be bound
by the terms and provisions of the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned has executed this
Counterpart as of _________, 1997.
[NAME]
By: _____________________________
Name:
Title: