-----------------------------
Registration Rights Agreement
Dated As of November 20, 1998
between
Xxxxxx Scientific International Inc.
and
Chase Securities Inc.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
and
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
-----------------------------
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into this 20th day of November 1998, among Xxxxxx Scientific
International Inc., a Delaware corporation (the "Company"), and Chase Securities
Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated
November 10, 1998, between the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for, among other things, the sale by the Company to
the Initial Purchasers of an aggregate of $200 million principal amount of the
Company's 9% Senior Subordinated Notes due 2008 (the "Securities"). In order to
induce the Initial Purchasers to enter into the Purchase Agreement, the Company
has agreed to provide to the Initial Purchasers and their direct and indirect
transferees the registration rights set forth in this Agreement. The execution
of this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from
time to time.
"1934 Act" shall mean the Securities Exchange Act of l934, as
amended from time to time.
"Affiliated Market Maker" shall mean any Initial Purchaser who is
required to by applicable law to deliver a prospectus in connection with
sales or market making activities with respect to the Exchange Securities.
"Closing Date" shall mean the Closing Time as defined in the
Purchase Agreement.
"Company" see the preamble hereto and shall also include the
Company's successors.
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"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company, provided, however, that such
depositary must have an address in the Borough of Manhattan, in the City
of New York.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2.1
hereof.
"Exchange Offer Registration" shall mean a registration under the
1933 Act effected pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, including the Prospectus contained therein, all exhibits
thereto and all documents incorporated by reference therein.
"Exchange Period" see Section 2.1 hereof.
"Exchange Securities" shall mean the 9% Senior Subordinated Notes
due 2008 to be issued by the Company under the Indenture containing terms
identical to the Securities in all material respects (except that (i)
interest thereon shall accrue from the last date on which interest was
paid on the Securities or, if no such interest has been paid, from
November 20, 1998 and (ii) the transfer restrictions thereon shall be
eliminated), to be offered to Holders of Securities in exchange for
Registrable Securities pursuant to the Exchange Offer.
"Holder" shall mean an Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable
Securities under the Indenture and each Participating Broker-Dealer that
holds Exchange Securities for so long as such Participating Broker-Dealer
is required to deliver a prospectus meeting the requirements of the 1933
Act in connection with any resale of such Exchange Securities.
"Indenture" shall mean the Indenture relating to the Securities,
dated as of November 20, 1998, between the Company and State Street Bank
and Trust Company, as trustee, as the same may be amended, supplemented,
waived or otherwise modified from time to time in accordance with the
terms thereof.
"Initial Purchaser" or "Initial Purchasers" see the preamble hereto.
2
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Outstanding (as defined in the Indenture)
Registrable Securities; provided that whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company and other obligors
on the Securities or any Affiliate (as defined in the Indenture) of the
Company shall be disregarded in determining whether such consent or
approval was given by the Holders of such required percentage amount.
"Participating Broker-Dealer" shall mean Chase Securities Inc.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation and any other broker-dealer that holds
Registrable Securities acquired for its own account as a result of market
making activities in the Securities and that will be the beneficial owner
(as defined in Rule 13d-3 under the 0000 Xxx) of Exchange Securities to be
received by such broker-dealer in the Exchange Offer.
"Person" shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
"Private Exchange" see Section 2.1 hereof.
"Private Exchange Securities" see Section 2.1 hereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus
as amended or supplemented by any prospectus supplement, including any
such prospectus supplement with respect to the terms of the offering of
any portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all
material incorporated by reference therein.
"Purchase Agreement" see the preamble hereto.
"Registrable Securities" shall mean the Securities and, if issued,
the Private Exchange Securities; provided, however, the Securities and, if
issued, the Private Exchange Securities shall cease to be Registrable
Securities when (i) a Registration Statement with respect to such
Securities or Private Exchange Securities for the exchange or resale
thereof, as the case may be, shall have been declared effective under the
1933 Act and such Securities or Private Exchange Securities, as the
3
case may be, shall have been disposed of pursuant to such Registration
Statement, (ii) such Securities or Private Exchange Securities, as the
case may be, have been sold to the public pursuant to Rule l44 (or any
similar provision then in force, but not Rule 144A) under the 1933 Act,
(iii) such Securities or Private Exchange Securities, as the case may be,
shall have ceased to be Outstanding (as defined in the Indenture) or (iv)
with respect to the Securities, the Exchange Offer is consummated (except
in the case of Securities purchased from the Company and continued to be
held by the Initial Purchasers and except with respect to any Securities
as to which clause (iv) of Section 2.2 is applicable).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement,
including without limitation: (i) all SEC or National Association of
Securities Dealers, Inc. (the "NASD") registration and filing fees,
including, if applicable, the fees and expenses of any "qualified
independent underwriter" (and its counsel) that is required to be retained
by any holder of Registrable Securities in accordance with the rules and
regulations of the NASD, (ii) all fees and expenses incurred in connection
with compliance with state securities or blue sky laws and compliance with
the rules of the NASD (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with blue sky
qualification of any of the Exchange Securities or Registrable Securities
and any filings with the NASD), (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales
agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Securities
on any securities exchange or exchanges, (v) all rating agency fees, (vi)
the fees and disbursements of counsel for the Company and of the
independent public accountants of the Company, including the expenses of
any special audits or "cold comfort" letters required by or incident to
such performance and compliance, (vii) the fees and expenses of the
Trustee, and any exchange agent or custodian, (viii) the reasonable fees
and expenses of the Initial Purchasers in connection with the Exchange
Offer, except for legal expenses which are separately provided for in
clause (ix) hereof, (ix) the reasonable fees, disbursements and expenses
of Xxxxxx Xxxxxx & Xxxxxxx (or such other counsel in lieu thereof
reasonably satisfactory to the Majority Holders and the Company) as
special counsel to the Initial Purchasers in the Exchange Offer and as
special counsel representing the Holders of Registrable Securities and (x)
any fees and disbursements of the underwriters customarily required to be
paid by issuers or sellers of securities and the reasonable fees and
expenses of any spe-
4
cial experts retained by the Company in connection with any Registration
Statement, but excluding underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
"Registration Statement" shall mean any registration statement of
the Company which covers any of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement, and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency or government body performing the functions currently
performed by the United States Securities and Exchange Commission.
"Securities" see the preamble hereto.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2.2 hereof.
"Shelf Registration Event" see Section 2.2 hereof.
"Shelf Registration Event Date" see Section 2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company pursuant to the provisions of
Section 2.2 of this Agreement which covers all of the Registrable
Securities or all of the Private Exchange Securities on an appropriate
form under Rule 415 under the 1933 Act, or any similar rule that may be
adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"TIA" shall mean the Trust Indenture Act of 1939, as amended
from time to time.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
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2. Registration Under the 1933 Act.
2.1. Exchange Offer. To the extent not prohibited by any applicable
law or interpretation of the staff of the SEC, the Company shall, for the
benefit of the Holders, at the Company's cost, use its best efforts to (A)
prepare and, as soon as practicable but not later than 90 days following the
Closing Date, file with the SEC an Exchange Offer Registration Statement on an
appropriate form under the 1933 Act with respect to a proposed Exchange Offer
and the issuance and delivery to the Holders, in exchange for the Registrable
Securities, a like principal amount of Exchange Securities (other than Private
Exchange Securities), (B) cause the Exchange Offer Registration Statement to be
declared effective under the 1933 Act within 180 days of the Closing Date, (C)
keep the Exchange Offer Registration Statement effective until the closing of
the Exchange Offer and (D) cause the Exchange Offer to be consummated not later
than 210 days following the Closing Date. Upon the effectiveness of the
Exchange Offer Registration Statement, the Company shall promptly commence the
Exchange Offer, it being the objective of such Exchange Offer to enable each
Holder eligible and electing to exchange Registrable Securities for Exchange
Securities (assuming that such Holder (a) is not an affiliate of the Company
within the meaning of Rule 405 under the 1933 Act, (b) is not a broker-dealer
tendering Registrable Securities acquired directly from the Company for its own
account, (c) acquired the Exchange Securities in the ordinary course of such
Holder's business and (d) has no arrangements or understandings with any person
to participate in the Exchange Offer for the purpose of distributing the
Exchange Securities) to transfer such Exchange Securities from and after their
receipt without any limitations or restrictions under the 1933 Act and under
state securities or blue sky laws.
In connection with the Exchange Offer, the Company shall:
(a) mail as promptly as practicable to each Holder a copy of the
Prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related documents;
(b) keep the Exchange Offer open for acceptance for a period of not
less than 30 calendar days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law) (such period referred
to herein as the "Exchange Period");
(c) utilize the services of the Depositary for the Exchange Offer;
(d) permit Holders to withdraw tendered Registrable Securities at
any time prior to 5:00 p.m. (New York City Time), on the last business day
of the Exchange
6
Period, by sending to the institution specified in the notice, a telegram,
telex, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Securities delivered for
exchange, and a statement that such Holder is withdrawing his election to
have such Securities exchanged;
(e) notify each Holder that any Registrable Security not tendered
will remain outstanding and continue to accrue interest, but will not
retain any rights under this Agreement (except in the case of the Initial
Purchasers and Participating Broker-Dealers as provided herein); and
(f) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
If any Initial Purchaser determines upon the advice of its outside
counsel that it is not eligible to participate in the Exchange Offer with
respect to the exchange of Securities constituting any portion of an unsold
allotment in the initial distribution, as soon as practicable upon receipt by
the Company of a written request from such Initial Purchaser, the Company shall,
simultaneously with the delivery of the Exchange Securities in the Exchange
Offer, issue and deliver to such Initial Purchaser in exchange (the "Private
Exchange") for the Securities held by such Initial Purchaser, a like principal
amount of debt securities of the Company on a senior subordinated basis, that
are identical (except that such securities shall bear appropriate transfer
restrictions) to the Exchange Securities (the "Private Exchange Securities").
The Exchange Securities and the Private Exchange Securities shall be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture and which, in either case, has been qualified under
the Trust Indenture Act of 1939, as amended (the "TIA"), or is exempt from such
qualification and shall provide that the Exchange Securities shall not be
subject to the transfer restrictions set forth in the Indenture but that the
Private Exchange Securities shall be subject to such transfer restrictions. The
Indenture or such indenture shall provide that the Exchange Securities, the
Private Exchange Securities and the Securities shall vote and consent together
on all matters as one class and that none of the Exchange Securities, the
Private Exchange Securities or the Securities will have the right to vote or
consent as a separate class on any matter. The Private Exchange Securities
shall be of the same series as and the Company will seek to cause the CUSIP
Service Bureau to issue the same CUSIP numbers for the Private Exchange
Securities as for the Exchange Securities issued pursuant to the Exchange Offer.
7
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Registrable Securities duly tendered and
not validly withdrawn pursuant to the Exchange Offer or the Private
Exchange;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities so accepted for exchange by the
Company; and
(iii) issue, and cause the Trustee promptly to authenticate and
deliver Exchange Securities or Private Exchange Securities, as the case
may be, to each Holder of Registrable Securities so accepted for exchange
in a principal amount equal to the principal amount of the Registrable
Securities of such Holder so accepted for exchange.
Interest on each Exchange Security and Private Exchange Security
will accrue from the last date on which interest was paid on the Registrable
Securities surrendered in exchange therefor or, if no interest has been paid on
the Registrable Securities, from the date of original issuance. The Exchange
Offer and the Private Exchange shall not be subject to any conditions, other
than (i) that the Exchange Offer or the Private Exchange, or the making of any
exchange by a Holder, does not violate applicable law or any applicable
interpretation of the staff of the SEC, (ii) the due tendering of Registrable
Securities in accordance with the Exchange Offer and the Private Exchange, (iii)
that each Holder of Registrable Securities exchanged in the Exchange Offer shall
have represented that it is not an affiliate of the Company within the meaning
of Rule 405 under the 1933 Act or, if it is an affiliate, that such holder will
comply with the registration and prospectus delivery requirements of the 1933
Act to the extent applicable, that all Exchange Securities to be received by it
shall be acquired in the ordinary course of its business and that at the time of
the consummation of the Exchange Offer it shall have no arrangement or
understanding with any person to participate in the distribution (within the
meaning of the 0000 Xxx) of the Exchange Securities and shall have made such
other representations as may be customary or reasonably necessary under
applicable SEC rules, regulations or interpretations to render the use of Form
S-4 or other appropriate form under the 1933 Act available and (iv) that no
action or proceeding shall have been instituted or threatened in any court or by
or before any governmental agency with respect to the Exchange Offer or the
Private Exchange which, in the Company's judgment, would reasonably be expected
to impair the ability of the Company to proceed with the Exchange Offer or the
Private Exchange. The Company shall inform the Initial Purchasers of the names
and addresses of the Holders to whom the Exchange Offer is made, and the Initial
Purchasers shall have the right to contact such Holders and otherwise facilitate
the tender of
8
Registrable Securities in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this
Section 2.1, the provisions of this Agreement shall continue to apply, modified
as necessary, solely with respect to Registrable Securities that are Private
Exchange Securities, Registrable Securities of the type described in clause (iv)
of Section 2.2 and Exchange Securities held by Participating Broker-Dealers, and
the Company shall have no further obligation to register Registrable Securities
(other than Private Exchange Securities and Securities of the type described in
clause (iv) of Section 2.2) pursuant to Section 2.2 of this Agreement.
2.2. Shelf Registration. In the event that (i) because of any
changes in law, SEC rules or regulations or applicable interpretations thereof
by the staff of the SEC, the Company reasonably determines that it is not
permitted to effect the Exchange Offer as contemplated by Section 2.1 hereof,
(ii) the Exchange Offer Registration Statement is not declared effective within
180 days following the original issue of the Registrable Securities or the
Exchange Offer is not consummated within 210 days after the original issue of
the Registrable Securities, (iii) upon the request of any of the Initial
Purchasers with respect to any Registrable Securities which it acquired
directly from the Company and, with respect to other Registrable Securities held
by it, if such Initial Purchaser is not permitted, in the opinion of counsel to
such Initial Purchaser, pursuant to applicable law or applicable
interpretations of the staff of the SEC, to participate in the Exchange Offer
and thereby receive securities that are freely tradeable without restriction
under the 1933 Act and applicable blue sky or state securities laws or (iv) if a
Holder is not permitted by applicable law to participate in the Exchange Offer
based upon advice of counsel to the effect that such Holder may not be legally
able to participate in the Exchange Offer or does not receive fully tradeable
Exchange Securities pursuant to the Exchange Offer (any of the events specified
in (i)-(iv) being a "Shelf Registration Event" and the date of occurrence
thereof, the "Shelf Registration Event Date"), then the Company shall, at its
cost:
(a) Cause to be filed as promptly as practicable after the
occurrence of such Shelf Registration Event Date, and thereafter shall use
its best efforts to cause to be declared effective as promptly as
practicable but no later than 180 days after the original issue of the
Registrable Securities (or, in the case of a request by any Initial
Purchaser, within 30 days of such request, which shall be no earlier than
90 days after the Closing Date), a Shelf Registration Statement relating
to the offer and sale of the Registrable Securities by the Holders from
time to time in accordance with the methods of distribution elected by
the Majority Holders participating in the Shelf Registration and set
forth in such Shelf Registration Statement.
9
(b) Use its best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus forming part
thereof to be usable by Holders for a period of two years (or one year in
the case of a request solely by an Initial Purchaser) from the date the
Shelf Registration Statement is declared effective by the SEC, or for
such shorter period that will terminate when all Registrable Securities
covered by the Shelf Registration Statement have been sold pursuant to the
Shelf Registration Statement or cease to be outstanding or otherwise to
be Registrable Securities (the "Effectiveness Period"); provided, however,
that the Effectiveness Period in respect of the Shelf Registration
Statement shall be extended to the extent required to permit dealers to
comply with the applicable prospectus delivery requirements of Rule 174
under the 1933 Act and as otherwise provided herein.
(c) Notwithstanding any other provisions hereof, use its best
efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the 1933 Act
and the rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes effective,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any Prospectus forming part of any Shelf
Registration Statement, and any supplement to such Prospectus (as amended
or supplemented from time to time), does not include an untrue statement
of a material fact or omit to state a material fact necessary in order to
make the statements, in light of the circumstances under which they were
made, not misleading.
The Company shall not permit any securities other than Registrable
Securities to the included in the Shelf Registration Statement. The Company
further agrees, if necessary, to supplement or amend the Shelf Registration
Statement, as required by Section 3(b) below, and to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
2.3. Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1 or 2.2. Each Holder
shall pay all expenses of its counsel (other than to the extent a Registration
Expense), underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Shelf Registration Statement.
2.4. Effectiveness. (a) The Company will be deemed not to have used
its best efforts to cause the Exchange Offer Registration Statement or the Shelf
Registration
10
Statement, as the case may be, to become, or to remain, effective during the
requisite period if the Company voluntarily takes any affirmative action that
would, or omits to take any action which omission would, result in any such
Registration Statement not being declared effective or in the holders of
Registrable Securities covered thereby not being able to exchange or offer and
sell such Registrable Securities during that period as and to the extent
contemplated hereby, unless such action is required by applicable law.
(b) An Exchange Offer Registration Statement pursuant to Section 2.1
hereof or a Shelf Registration Statement pursuant to Section 2.2 hereof will not
be deemed to have become effective unless it has been declared effective by the
SEC; provided, however, that if, after it has been declared effective, the
offering of Registrable Securities pursuant to a Shelf Registration Statement
is interfered with by any stop order, injunction or other order or requirement
of the SEC or any other governmental agency or court, such Registration
Statement will be deemed not to have become effective during the period of such
interference, until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume.
2.5. Liquidated Damages. In the event that (a) the Exchange Offer
Registration Statement is not filed with the Commission on or prior to the 90th
calendar day following the date of original issue of the Securities, (b) the
Exchange Offer Registration Statement has not been declared effective on or
prior to the 180th calendar day following the date of original issue of the
Securities or (c) the Exchange Offer is not consummated on or prior to the 210th
calendar day following the date of original issue of the Securities or a Shelf
Registration Statement is not declared effective on or prior to the 180th
calendar day following the date of original issue of the Securities (or, if a
Shelf Registration Statement is required to be filed because of the request of
any Initial Purchaser, 30 days following the request by any such Initial
Purchasers that the Company file the Shelf Registration Statement) (each such
event referred to in clauses (a) through (c) above, a "Registration Default"),
the Company will pay liquidated damages to each Holder of Registrable Securities
as to which such Registration Default applies, during the period of such
Registration Default, in an amount equal to $0.192 per week per $1,000 amount of
such Registrable Securities held by such Holder until the applicable
Registration Statement is filed or declared effective, the Exchange Offer is
consummated or the Shelf Registration Statement again becomes effective, as the
case may be. All accrued liquidated damages shall be paid to Holders in the same
manner as interest payments on the Securities on semi-annual payment dates
which correspond to interest payment dates for the Securities. Following the
cure of all Registration Defaults, the accrual of liquidated damages will
cease.
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3. Registration Procedures.
In connection with the obligations of the Company with respect to
Registration Statements pursuant to Sections 2.1 and 2.2 hereof, the Company
shall:
(a) prepare and file with the SEC a Registration Statement, within
the relevant time period specified in Section 2, on the appropriate form
under the 1933 Act, which form (i) shall be selected by the Company, (ii)
shall, in the case of a Shelf Registration, be available for the sale of
the Registrable Securities by the selling Holders named therein and by any
Affiliated Market Maker, (iii) shall comply as to form in all material
respects with the requirements of the applicable form and include or
incorporate by reference all financial statements required by the SEC to
be filed therewith or incorporated by reference therein, and (iv) shall
comply in all respects with the requirements of Regulation S-T under the
1933 Act, and use its best efforts to cause such Registration Statement to
become effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under
applicable law to keep such Registration Statement effective for the
applicable period; and cause each Prospectus to be supplemented if so
determined by the Company or requested by the SEC, by any required
prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provision then in force) under the 1933 Act and
comply with the provisions of the 1933 Act, the 1934 Act and the rules and
regulations thereunder applicable to them with respect to the disposition
of all securities covered by each Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the selling Holders thereof described in this Agreement
(including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities and each Affiliate Market Maker, at least five
business days prior to filing, that a Shelf Registration Statement with
respect to the Registrable Securities is being filed and advising such
Holders that the distribution of Registrable Securities will be made in
accordance with the method selected by the Majority Holders participating
in the Shelf Registration; (ii) furnish to each Holder of Registrable
Securities and each Affiliated Market Maker and to each underwriter of an
underwritten offering of Registrable Securities, if any, without charge,
as many copies of each Prospectus, including each preliminary Prospectus,
and any amendment or supplement thereto and such other documents as such
Holder or Affiliated Market Maker
12
or underwriter may reasonably request, including financial statements and
schedules and, if so requested, all exhibits in order to facilitate the
public sale or other disposition of the Registrable Securities; and (iii)
hereby consent to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Registrable Securities in
connection with the offering and sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement thereto and by
each Affiliated Market Maker in connection with sales or market making
activities;
(d) in the case of a Shelf Registration, to register or qualify the
Registrable Securities under all applicable state securities or "blue sky"
laws of such jurisdictions as any Holder of Registrable Securities
covered by a Registration Statement and each underwriter of an
underwritten offering of Registrable Securities shall reasonably request
by the time the applicable Registration Statement is declared effective by
the SEC, and do any and all other acts and things which may be reasonably
necessary or advisable to enable each such Holder and underwriter to
consummate the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that the Company shall
not be required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d), or (ii) take any action which would
subject it to general service of process or taxation in any such
jurisdiction where it is not then so subject;
(e) notify promptly each Holder of Registrable Securities under a
Shelf Registration, each Affiliated Market Maker and any Participating
Broker-Dealer who has notified the Company that it is utilizing the
Exchange Offer Registration Statement as provided in paragraph (f) below
and, if requested by such Holder or Affiliated Market Maker or
Participating Broker-Dealer, confirm such advice in writing promptly (i)
when a Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective, (ii)
of any request by the SEC or any state securities authority for
post-effective amendments and supplements to a Registration Statement and
Prospectus or for additional information after the Registration Statement
has become effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) in the case of a Shelf Registration, if, between the
effective date of a Registration Statement and the closing of any sale of
Registrable Securities covered thereby, the representations and
warranties of the Company contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating to
the offering cease to be true and correct in all mate-
13
rial respects, (v) of the happening of any event or the discovery of any
facts during the period a Shelf Registration Statement is effective which
makes any statement made in such Registration Statement or the related
Prospectus untrue in any material respect or which requires the making of
any changes in such Registration Statement or Prospectus in order to make
the statements therein not misleading, (vi) of the receipt by the Company
of any notification with respect to the suspension of the qualification of
the Registrable Securities or the Exchange Securities, as the case may be,
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose and (vii) of any determination by the Company
that a post-effective amendment to such Registration Statement would be
appropriate;
(f) (A) in the case of the Exchange Offer Registration Statement (i)
include in the Exchange Offer Registration Statement a section entitled
Plan of Distribution" which section shall be reasonably acceptable to
Chase Securities Inc. on behalf of the Participating Broker-Dealers, and
which shall contain a summary statement of the positions taken or policies
made by the staff of the SEC with respect to the potential "underwriter"
status of any broker-dealer that holds Registrable Securities acquired for
its own account as a result of market-making activities or other trading
activities and that will be the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of Exchange Securities to be received by such
broker-dealer in the Exchange Offer, whether such positions or policies
have been publicly disseminated by the staff of the SEC or such positions
or policies, in the reasonable judgment of the Initial Purchasers and its
counsel, represent the prevailing views of the staff of the SEC, including
a statement that any such broker-dealer who receives Exchange Securities
for Registrable Securities pursuant to the Exchange Offer may be deemed a
statutory underwriter and must deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such
Exchange Securities, (ii) furnish to each Participating Broker-Dealer who
has delivered to the Company the notice referred to in Section 3(e),
without charge, as many copies of each Prospectus included in the Exchange
Offer Registration Statement, including any preliminary prospectus, and
any amendment or supplement thereto, as such Participating Broker-Dealer
may reasonably request, (iii) hereby consent to the use of the Prospectus
forming part of the Exchange Offer Registration Statement or any amendment
or supplement thereto, by any person subject to the prospectus delivery
requirements of the SEC, including all Participating Broker-Dealers, in
connection with the sale or transfer of the Exchange Securities covered by
the Prospectus or any amendment or supplement thereto, for a period not to
exceed 180 days, and (iv) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in order to
participate in the
14
Exchange Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding Registrable Securities
acquired for its own account as a result of market-making activities or
other trading activities, it will deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of Exchange
Securities received in respect of such Registrable Securities pursuant to
the Exchange Offer;" and
(y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Securities, the broker-dealer
will not be deemed to admit that it is an underwriter within the meaning
of the 1933 Act; and
(B) in the case of any Exchange Offer Registration Statement,
the Company agrees, if requested by the Initial Purchaser, to deliver to
the Initial Purchasers on behalf of the Participating Broker-Dealers upon
consummation of the Exchange Offer (i) an opinion of counsel or opinions
of counsel in form and substance reasonably satisfactory to the Initial
Purchasers covering the matters customarily covered in underwritten
offerings and such other matters as may be reasonably requested (it being
agreed that the matters to be covered by such opinion may be subject to
customary qualifications and exceptions), (ii) an officers' certificate
containing certifications substantially similar to those set forth in
Section 5(d) of the Purchase Agreement and such other certifications as
are customarily delivered in a public offering of debt securities and
(iii) as well as upon effectiveness of the Exchange Offer Registration
Statement, a comfort letter or comfort letters, in customary form if
permitted by Statement on Auditing Standards No. 72 of the American
Institute of Certified Public Accountants (or if such a comfort letter is
not permitted, an agreed upon procedures letter in customary form) from
the Company's independent certified public accountants (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 are, or are required to be, included in the
Registration Statement);
(g) (i) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and (ii) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Securities copies of any comment
letters received from the SEC or any other request by the SEC or any state
securities authority for amendments or supplements to a Registration
Statement and Prospectus or for additional information;
15
(h) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities and each Affiliated Market Maker included within
the coverage of such Shelf Registration Statement, and each underwriter,
if any, without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules (without documents incorporated therein by
reference and all exhibits thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold
and not bearing any restrictive legends; and enable such Registrable
Securities to be in such denominations (consistent with the provisions of
the Indenture) and registered in such names as the selling Holders or the
underwriters, if any, may reasonably request at least two business days
prior to the closing of any sale of Registrable Securities pursuant to
such Shelf Registration Statement;
(k) in the case of a Shelf Registration, upon the occurrence of any
circumstance contemplated by Sections 3(e)(v) and 3(e)(vi) hereof as
promptly as practicable after the occurrence of such event, use its best
efforts to prepare a supplement or post-effective amendment to the
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable
Securities or Participating Broker-Dealers or Affiliated Market Makers,
such Prospectus will not contain at the time of such delivery any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading or will remain so qualified. At such time
as such public disclosure is otherwise made or the Company determines
that such disclosure is not necessary, in each case, to correct any
misstatement of a material fact or to include any omitted material fact,
the Company agrees promptly to notify each Holder of such determination
and to furnish each Holder such number of copies of the Prospectus as
amended or supplemented, as such Holder may reasonably request;
(l) in the case of a Shelf Registration, a reasonable time prior to
the filing of any Registration Statement, any Prospectus, any amendment to
a Registration Statement or supplement to a Prospectus or any document
which is to be incorpo-
16
rated by reference into a Registration Statement or Prospectus after
initial filing of a Registration Statement, provide copies of such
document to the Initial Purchasers on behalf of such Holders and to each
Affiliated Market Maker; and make representatives of the Company as shall
be reasonably requested by the Holders of Registrable Securities, or the
Initial Purchasers on behalf of such Holders, or Affiliated Market Makers
available for discussion of such document;
(m) obtain a CUSIP number for all Exchange Securities, Private
Exchange Securities or Registrable Securities, as the case may be, not
later than the effective date of a Registration Statement, and provide the
Trustee with printed certificates for the Exchange Securities, Private
Exchange Securities or Registrable Securities, as the case may be, in a
form eligible for deposit with the Depositary;
(n) (i) cause the Indenture or an indenture to be qualified under
the TIA in connection with the registration of the Exchange Securities or
Registrable Securities, as the case may be, (ii) cooperate with the
Trustee and the Holders to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the
terms of the TIA and (iii) execute, and use its best efforts to cause the
Trustee to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with the
SEC to enable the Indenture or an indenture to be so qualified in a timely
manner;
(o) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and
appropriate actions as are reasonably requested in order to expedite or
facilitate the disposition of such Registrable Securities, and in such
connection whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registration, if
requested by (x) any Initial Purchaser, in the case where an Initial
Purchasers holds Securities acquired by it as part of its initial
distribution and (y) other Holders of Securities covered thereby:
(i) make such representations and warranties to the Holders of
such Registrable Securities and the underwriters, if any, as are
customarily made by issuers to underwriters in similar underwritten
offerings;
(ii) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if
any, and the Holders of a majority in principal amount of the
Registrable Securities being sold) addressed to each selling Holder
and the underwriters, if any, covering
17
the matters customarily covered in opinions requested in sales of
securities or underwritten offerings and such other matters as may
be reasonably requested by such Holders and underwriters (it being
agreed that the matters to be covered by such opinion may be subject
to customary qualifications and exceptions);
(iii) obtain "cold comfort" letters and updates thereof from
the Company's independent certified public accountants (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 are, or are required to be, included
in the Registration Statement) addressed to the underwriters, with
copies to each of the selling Holders of Registrable Securities,
such letters to be in customary form and covering matters of the
type customarily covered in "cold comfort" letters to underwriters
in connection with similar underwritten offerings in accordance with
Statement on Auditing Standards No. 72 of the American Institute of
Certified Public Accounts;
(iv) enter into a securities sales agreement with the Holders
and an agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose of
soliciting purchases of Registrable Securities, which agreement
shall be in form, substance and scope customary for similar
offerings;
(v) if an underwriting agreement is entered into, cause the
same to set forth indemnification provisions and procedures
substantially equivalent to the indemnification provisions and
procedures set forth in Section 4 hereof with respect to the
underwriters and all other parties to be indemnified pursuant to
said Section or, at the request of any underwriters, in the form
customarily provided to such underwriters in similar types of
transactions; and
(vi) deliver such documents and certificates as may be
reasonably requested and as are customarily delivered in similar
offerings to the Holders of a majority in principal amount of the
Registrable Securities being sold and the managing underwriters, if
any.
The above shall be done at each closing under any underwriting or similar
agreement or as and to the extent required thereunder.
18
(p) in the case of a Shelf Registration or if a Prospectus is
required to be delivered by any Participating Broker-Dealer in the case of
an Exchange Offer, make reasonably available for inspection by
representatives of the Holders of the Registrable Securities, any
underwriters participating in any disposition pursuant to a Shelf
Registration Statement, any Participating Broker-Dealer and any counsel or
accountant retained by any of the foregoing (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable
business hours, all financial and other records, pertinent corporate
documents and properties of the Company (collectively, the "Records")
reasonably necessary to enable such persons to exercise any applicable
due diligence responsibilities, and cause the respective officers,
directors, employees, and any other agents of the Company to supply all
information reasonably requested by any such representative, underwriter,
special counsel or accountant in connection with a Registration Statement,
and make such representatives of the Company available for discussion of
such documents as shall be reasonably requested by the Initial Purchasers;
provided, however, that the foregoing inspection and information
gathering shall be coordinated on behalf of the Initial Purchasers by
Chase Securities Inc. and on behalf of the other parties, by one counsel
designated by the holders of a Majority of the Registrable Securities.
Records which the Company determines, in good faith, to be confidential
and any records which it notifies the Inspectors are confidential shall
not be disclosed by the Inspectors unless (i) the disclosure of such
Records is necessary to avoid or correct a material misstatement or
omission in such Registration Statement or is otherwise required by law,
(ii) the release of such Records is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction or is necessary in
connection with any action, suit or proceeding or (iii) the information in
such Records has been made generally available to the public. Each selling
Holder of such Registrable Securities and each such Participating
Broker-Dealer will be required to agree in writing that information
obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such is
made generally available to the public. Each selling Holder of such
Registrable Securities and each such Participating Broker-Dealer will be
required to further agree in writing that it will, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction,
give notice to the Company and allow the Company at its expense to
undertake appropriate action to prevent disclosure of the Records deemed
confidential;
(q) (i) in the case of an Exchange Offer Registration Statement a
reasonable time prior to the filing of any Exchange Offer Registration
Statement, any Prospectus forming a part thereof, any amendment to an
Exchange Offer Xxxxxxxx-
00
tion Statement or amendment or supplement to such Prospectus, provide
copies of such document to the Initial Purchasers or counsel to the
Holders of Registrable Securities and make such changes in any such
document prior to the filing thereof as the Initial Purchasers to counsel
to the Holders of Registrable Securities and may reasonably request and,
except as otherwise required by applicable law, nor file any such document
in a form to which the Initial Purchasers on behalf of the Holders of
Registrable Securities and counsel to Holders of Registrable Securities
shall not have previously been advised and furnished a copy of or to which
the Initial Purchasers on behalf of the Holders of Registrable Securities
shall reasonably object and make the representatives of the Company
available for discussion of such documents as shall be reasonably
requested by the Initial Purchasers, and
(ii) in the case of a Shelf Registration, a reasonable time prior to
filing any Shelf Registration Statement, any Prospectus forming a part
thereof, any amendment to such Shelf Registration Statement or amendment
or supplement to such Prospectus, provide copies of such document to the
Holders of Registrable Securities, to the Initial Purchasers, to counsel
on behalf of the Holders and to the underwriter or underwriters of an
underwritten offering of Registrable Securities, if any, make such changes
in any such document prior to the filing thereof as the Initial
Purchasers, the counsel to the Holders or the underwriter or underwriters
reasonably request and not file any such document in a form to which the
Majority Holders, the Initial Purchasers on behalf of the Holders of the
Registrable Securities, counsel to the Holders of Registrable Securities
or any underwriter shall reasonably object, and make the representatives
of the Company available for discussion of such document as shall be
reasonably requested by the Holders of Registrable Securities, the Initial
Purchasers on behalf of such Holders, or any underwriter;
(r) in the case of a Shelf Registration, use its best efforts to
cause all Registrable Securities to be listed on any securities exchange
on which similar debt securities issued by the Company are then listed if
requested by the Majority Holders, or if requested by the underwriter or
underwriters of an underwritten offering of Registrable Securities, if
any;
(s) in the case of a Shelf Registration, use its best efforts to
cause the Registrable Securities to be rerated by the appropriate rating
agencies, if so requested by the Majority Holders, or if requested by the
underwriter or underwriters of an underwritten offering of Registrable
Securities, if any;
(t) comply with all applicable rules and regulations of the SEC so
long as any provision of this Agreement shall be applicable and make
available to its secu-
20
rity holders an earning statement satisfying the provisions of Section
11(a) of the 1933 Act and Rule 158 thereunder (or any similar rule
promulgated under the 0000 Xxx) no later than the end of any 12-month
period (or 90 days after the end of any 12-month period if such period is
a fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm commitment or
best efforts underwritten offering and (ii) if not sold to underwriters
in such an offering, commencing on the first day of the first fiscal
quarter of the Company after the effective date of a Registration
Statement, which statement shall cover said 12-month periods;
(u) cooperate and assist in any filings required to be made with the
NASD and, in the case of a Shelf Registration, in the performance of any
due diligence investigation by any underwriter and its counsel (including
any "qualified independent underwriter" that is required to be retained
in accordance with the rules and regulations of the NASD); and
(v) upon consummation of an Exchange Offer or a Private Exchange, if
requested by the Trustee, obtain a customary opinion of counsel to the
Company addressed to the Trustee for the benefit of all Holders of
Registrable Securities participating in the Exchange Offer or Private
Exchange, and which includes an opinion that (i) the Company has duly
authorized, executed and delivered the Exchange Securities and/or Private
Exchange Securities, as applicable and the related indenture, and (ii)
each of the Exchange Securities and related indenture constitute a legal,
valid and binding obligation of the Company, enforceable against the
Company in accordance with its respective terms (in each case with
customary exceptions).
The Company may (as a condition to such Holder's participation in
the Shelf Registration) require each Holder of Registrable Securities to furnish
to the Company such information regarding the Holder and the proposed
distribution by such Holder of such Registrable Securities for inclusion in any
Shelf Registration Statement or Prospectus included therein as the Company may
from time to time reasonably request in writing. The Company shall have no
obligation to register under the 1933 Act the Registrable Securities of a seller
who so fails to furnish such information within a reasonable time after
receiving such request. Each Holder as to which any Shelf Registration is being
effected agrees to furnish to the Company all information with respect to such
Holder necessary to make the information previously furnished to the Company by
such Holder not materially misleading.
In the case of a Shelf Registration Statement, each Holder and each
Affili-
21
ated Market Maker agrees that, upon receipt of any notice from the Company of
the occurrence of a circumstance contemplated by Sections 3(e)(v) and 3(e)(vi)
hereof, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to a Registration Statement until such Person's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
3(k) hereof, and, if so directed by the Company, such Holder will deliver to
the Company (at its expense) all copies in such Person's possession of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice.
If any of the Registrable Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
underwriter or underwriters and manager or managers that will manage such
offering will be selected by the Majority Holders of such Registrable Securities
included in such offering and shall be acceptable to the Company. No Holder of
Registrable Securities may participate in any underwritten registration
hereunder unless such Holder (a) agrees to sell such Holder's Registrable
Securities on the basis provided in any underwriting arrangements approved by
the persons entitled hereunder to approve such arrangements and (b) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
4. Indemnification; Contribution.
(a) In connection with any Registration Statement, the Company
agrees to indemnify and hold harmless the Initial Purchasers, each Holder, each
Participating Broker-Dealer, each person who participates as an underwriter (any
such person being an "Underwriter") and each Person, if any, who controls any
Holder or Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Registration
Statement (or any amendment or supplement thereto) pursuant to which
Exchange Securities or Registrable Securities were registered under the
1933 Act, including all documents incorporated therein by reference, or
the omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading, or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (or any amendment
or supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
22
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
4(d) below) any such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by any indemnified party),
reasonably incurred ininvestigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Holder or Underwriter expressly for use in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto)
provided, further, that the Company shall not be liable to any such Holder,
Participating Broker-Dealer or controlling person, with respect to any untrue
statement or alleged untrue statement or omission or alleged omission in any
preliminary Prospectus to the extent that any such loss, liability, claim,
damage or expense of any Holder, Participating Broker-Dealer or controlling
person results from the fact that such Holder or Participating Broker-Dealer
sold Securities to a person to whom there was not sent or given, at or prior to
the written confirmation of such sale, a copy of the final Prospectus as then
amended or supplemented if the Company had previously furnished copies thereof
to such Holder or Participating Broker-Dealer and the loss, liability, claim,
damage or expense of such Holder, Participating Broker-Dealer or controlling
person results from an untrue statement or omission of a material fact contained
in the preliminary Prospectus which was corrected in the final Prospectus. Any
amounts advanced by the Company to an indemnified party pursuant to this Section
4 as a result of such losses shall be returned to the Company if it shall be
finally determined by such a court in a judgment not subject to appeal or final
review that such indemnified party was not entitled to indemnification by the
Company.
(b) Each Holder severally, but not jointly, agrees to indemnify and
hold harmless the Company, the Initial Purchasers, each Underwriter and the
other selling
23
Holders, and each of their respective directors and officers, and each Person,
if any, who controls the Company, the Initial Purchasers, each Underwriter or
any other selling Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, against any and all loss, liability, claim, damage
and expense described in the indemnity contained in Section 4(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Shelf Registration Statement (or any
amendment thereto) or any Prospectus included therein (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
with respect to such Holder furnished to the Company by such Holder expressly
for use in the Shelf Registration Statement (or any amendment thereto) or such
Prospectus (or any amendment or supplement thereto); provided, however, that no
such Holder shall be liable for any claims hereunder in excess of the amount of
net proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure so to notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action. If an indemnifying party so elects within a reasonable time after
receipt of such notice, an indemnifying party, severally or jointly with any
other indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and reasonably acceptable to the indemnified
parties defendant (or target of) in such action, provided, however, that if (i)
representation of such indemnified party by the same counsel would present a
conflict of interest or (ii) the actual or potential defendants in, or targets
of, any such action include both the indemnified party and the indemnifying
party and any such indemnified party reasonably determines that there may be
legal defenses available to such indemnified party which are different from or
in addition to those available to such indemnifying party, then in the case of
clauses (i) or (ii) of this Section 4(c) such indemnifying party and counsel for
each indemnifying party or parties shall not be entitled to assume such defense.
If an indemnifying party is not entitled to assume the defense of such action as
a result of the proviso to the preceding sentence, counsel for each indemnified
party or parties shall be entitled to conduct the defense of such indemnified
party or parties. If an indemnifying party assumes the defense of such action,
in accordance with and as permitted by the provisions of this paragraph, such
indemnifying parties shall not be liable for any fees and expenses of counsel
for the indemnified parties incurred thereafter in connection with such action.
In no event shall the indemnifying party or parties be liable for the fees and
expenses of more than one counsel (in addition
24
to any local counsel) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 4 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii)
does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses for counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 4(a)(ii)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it considers
such request to be reasonable and (ii) provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
(e) If the indemnification provided for in this Section 4 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand, and the Holders
and the Initial Purchasers on the other hand, in connection with the statements
or omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
25
The relative fault of the Company on the one hand and the Holders
and the Initial Purchasers 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, the Holders or the Initial Purchasers
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, the Holders and the Initial Purchasers agree that it
would not be just and equitable if contribution pursuant to this Section 4 were
determined by pro rata allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in this
Section 4. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
4 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 4, no Initial
Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities sold by it were offered exceeds
the amount of any damages which such Initial Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who controls an
Initial Purchaser or Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Initial Purchaser or Holder, and each director of the Company and each Person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company.
5. Additional Agreements with Respect to Affiliated Market Makers.
5.1. From and after the effectiveness of any Registration Statement,
the Company shall, for so long as any Securities, Exchange Securities or Private
Exchange
26
Securities are outstanding and any Affiliated Market Maker is required by
applicable law in the judgment of counsel to the Initial Purchasers, after
consultation with counsel to the Company to deliver a prospectus in connection
with sales or market making activities, periodically amend each Registration
Statement or amend each Prospectus covering Securities, Exchange Securities or
Private Exchange Securities to reflect the occurrence of any fact or information
becoming known to the Company that should be set forth in an amendment to any
such Registration Statement or in a supplement to any such Prospectus so that
each such Prospectus, when delivered by an Affiliated Market Maker to a
purchaser in connection with sales or market marking activities of such
Affiliated Market Maker, will comply with applicable law.
5.2. Prior to filing any amendment to any such Registration
Statement or any supplement to any such Prospectus, the Company shall furnish a
reasonable period of time prior to the proposed filing thereof to each
Affiliated Market Maker and their counsel copies of all such documents proposed
to be filed, which documents shall be subject to review. The Company shall
provide to each Affiliated Market Maker and such counsel such reasonable number
of copies of each filed amendment or supplement as shall be requested and
hereby consents to the use of such Prospectus or any amendment or supplement
thereto by each Affiliated Market Maker in connection with sales or market
making activities with respect to the Securities, Exchange Securities or Private
Exchange Securities.
5.3. In connection with any such sales or market making activities
as contemplated by this Section 5, the Company agrees to indemnify each
Affiliated Market Maker, and if applicable to contribute to such Affiliated
Market Maker and such Affiliated Market Maker agrees to indemnify the Company,
and if applicable to contribute to the Company, in each case in a manner
substantially identical to that specified in Section 4 hereof.
5.4. In the case of a Registration Statement, each Affiliated Market
Maker agrees that, upon receipt of any notice from the Company of the occurrence
of a circumstance contemplated by the following:
(i) the happening of any event or the discovery of any facts during
the period a Registration Statement is effective which makes any statement
made in such Registration Statement or the related Prospectus untrue in
any material respect or which requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements
therein not misleading; or
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(ii) the receipt by the Company of any notification with respect to
the suspension of the qualification of the Exchange Securities, for sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose, such Affiliated Market Maker will forthwith discontinue
disposition of such Exchange Securities, pursuant to a Registration
Statement until such Person's receipt of the copies of the supplemented or
amended Prospectus in accordance with the following:
that as promptly as practicable after the occurrence of an event
contemplated by (i) and (ii) of this Section 5.4, the Company shall use
its best efforts to prepare a supplement or post-effective amendment to
the Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of the Exchange
Securities, such Prospectus will not contain at the time of such delivery
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they are made, not misleading or will remain so qualified.
Further, if so directed by the Company, such Affiliated Market Maker
will deliver to the Company (at its expense) all copies in such Person's
possession of the Prospectus covering such Exchange Securities current at the
time of receipt of such notice.
6. Miscellaneous.
6.1. Rule 144 and Rule 144A. For so long as the Company is subject
to the reporting requirements of Section 13 or 15 of the 1934 Act and any
Registrable Securities remain outstanding, the Company will file the reports
required to be filed by it under the 1933 Act and Section 13(a) or 15(d) of the
1934 Act and the rules and regulations adopted by the SEC thereunder. If the
Company ceases to be so required to file such reports, the Company covenants
that it will upon the request of any Holder of Registrable Securities (a) make
publicly available such information as is necessary to permit sales pursuant to
Rule 144 under the 1933 Act, (b) deliver such information to a prospective
purchaser as is necessary to permit sales pursuant to Rule 144A under the 1933
Act and it will take such further action as any Holder of Registrable Securities
may reasonably request, and (c) take such further action that is reasonable in
the circumstances, in each case, to the extent required from time to time to
enable such Holder to sell its Registrable Securities without registration under
the 1933 Act within the limitation of the exemptions provided by (i) Rule 144
under the 1933 Act, as such Rule may be amended from time to time, (ii) Rule
144A under the 1933 Act, as such Rule may be amended from time to time, or (iii)
any similar rules or regulations hereafter adopted by the SEC. Upon the request
of any Holder of Registrable Securities, the Company will deliver to such Holder
a
28
written statement as to whether it has complied with such requirements.
6.2. No Inconsistent Agreements. The Company has not entered into
and the Company will not after the date of this Agreement enter into any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with the rights granted to the holders of the Company's other issued
and outstanding securities under any such agreements.
6.3. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or departure.
6.4. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of
this Section 6.4, which address initially is the address set forth in the
Purchase Agreement with respect to the Initial Purchasers; and (b) if to the
Company, initially at the Company's address set forth in the Purchase Agreement,
and thereafter at such other address of which notice is given in accordance with
the provisions of this Section 6.4.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall
be concurrently delivered by the person giving the same to the Trustee under
the Indenture, at the address specified in such Indenture.
6.5. Successor and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or
29
other disposition of Registrable Securities in violation of the terms of the
Purchase Agreement or the Indenture. If any transferee of any Holder shall
acquire Registrable Securities, in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all of the terms
of this Agreement, and by taking and holding such Registrable Securities such
person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such person shall be entitled to receive the benefits hereof.
6.6. Third Party Beneficiaries. The Initial Purchasers (even if the
Initial Purchasers are not Holders of Registrable Securities) shall be third
party beneficiaries to the agreements made hereunder between the Company, on the
one hand, and the Holders, on the other hand, and shall have the right to
enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder. Each Holder of Registrable Securities shall be a third party
beneficiary to the agreements made hereunder between the Company, on the one
hand and the Initial Purchasers on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights hereunder.
6.7. Specific Enforcement. Without limiting the remedies available
to the Initial Purchasers and the Holders, the Company acknowledges that any
failure by the Company to comply with its obligations under Section 2.1 through
2.4 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 would not
be possible to measure damages for such injuries precisely and that, in the
event of any such failure, the Initial Purchasers or any Holder may obtain such
relief as may be required to specifically enforce the Company's obligations
under Section 2.1 through 2.4 hereof.
6.8. Restriction on Resales. Until the expiration of two years after
the original issuance of the Securities, the Company will not, and will cause
their "affiliates" (as such term is defined in Rule 144(a)(1) under the 0000
Xxx) not to, resell any Securities which are "restricted securities" (as such
term is defined under Rule 144(a)(3) under the 0000 Xxx) that have been
reacquired by any of them and shall immediately upon any purchase of any such
Securities submit such Securities to the Trustee for cancellation.
6.9. 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.
30
6.10. Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
6.11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
6.12. 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
XXXXXX SCIENTIFIC INTERNATIONAL
INC.
By: /s/ Xxxx X. XxXxxxx
----------------------------
Name: Xxxx X. XxXxxxx
Title: Vice President, General
Counsel and Secretary
Confirmed and accepted as of the date first above written:
CHASE SECURITIES INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxx Xxxxxxxx
---------------------------------
Name: Xxx Xxxxxxxx
Title: Vice President
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
32
