EXHIBIT 4.1(c)
$125,000,000
TELEX COMMUNICATIONS, INC.
11 1/2% OF SENIOR SECURED NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
November 19, 2003
XXXXXXXXX & COMPANY, INC.
00000 Xxxxx Xxxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Ladies and Gentlemen:
TELEX COMMUNICATIONS, INC. (f/k/a Telex Newco, Inc.), a Delaware
corporation (the "Company"), is issuing and selling to Xxxxxxxxx & Company, Inc.
(the "Initial Purchaser"), upon the terms set forth in the Purchase Agreement,
dated October 31, 2003, by and among the Company, the Initial Purchaser and the
subsidiary guarantors named therein (the "Purchase Agreement"), $125,000,000
aggregate principal amount of 11 1/2% Senior Secured Notes due 2008 issued by
the Company (each, together with the related guarantees, a "Note" and
collectively, the "Notes"). As an inducement to the Initial Purchaser to enter
into the Purchase Agreement, the Company and the Subsidiary Guarantors (as
defined below) agree with the Initial Purchaser, for the benefit of the Holders
(as defined below) of the Notes (including, without limitation, the Initial
Purchaser), as follows:
1. DEFINITIONS
Capitalized terms that are used herein without definition and are
defined in the Purchase Agreement shall have the respective meanings ascribed to
them in the Purchase Agreement. As used in this Agreement, the following terms
shall have the following meanings:
ADDITIONAL INTEREST: See Section 4(a).
ADVICE: See Section 6(v).
AGREEMENT: This Registration Rights Agreement, dated as of the Closing
Date, among the Company, the Subsidiary Guarantor party hereto and the Initial
Purchaser.
APPLICABLE PERIOD: See Section 2(e).
BUSINESS DAY: A day that is not a Saturday, a Sunday or a day on which
banking institutions in the City of New York are authorized or required by law
or executive order to be closed.
CLOSING DATE: November 19, 2003.
COLLATERAL AGREEMENTS: Shall have the meaning set forth in the
Indenture.
COMPANY: See the introductory paragraph to this Agreement.
DAY: Unless otherwise expressly provided, a calendar day.
EFFECTIVENESS DATE: The 210th day after the Issue Date.
EFFECTIVENESS PERIOD: See Section 3(a).
EVENT DATE: See Section 4(b).
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
EXCHANGE NOTES: Senior Secured Notes due 2008 of the Company registered
under the Securities Act, identical in all material respects to the Notes,
including the guarantees endorsed thereon, except for restrictive legends and
additional interest provisions.
EXCHANGE OFFER: See Section 2(a).
EXCHANGE REGISTRATION STATEMENT: See Section 2(a).
FILING DATE: The 120th day after the Issue Date.
HOLDER: Any registered holder of Registrable Notes.
INDEMNIFIED PARTY: See Section 8(c).
INDEMNIFYING PARTY: See Section 8(c).
INDENTURE: The Indenture, dated as of the Closing Date, among the
Company, the Subsidiary Guarantors and BNY Midwest Trust Company, as trustee,
pursuant to which the Notes are being issued, as amended or supplemented from
time to time in accordance with the terms hereof.
INITIAL PURCHASER: See the introductory paragraph to this Agreement.
INITIAL SHELF REGISTRATION STATEMENT: See Section 3(a).
INSPECTORS: See Section 6(o).
ISSUE DATE: November 19, 2003.
LIEN: Shall have the meaning set forth in the Indenture.
LOSSES: See Section 8(a).
MAXIMUM CONTRIBUTION AMOUNT: See Section 8(d).
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NASD: National Association of Securities Dealers, Inc.
NOTES: See the introductory paragraph to this Agreement.
PARTICIPATING BROKER-DEALER: See Section 2(e).
PERSON: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm, government or agency or political subdivision
thereof, or other legal entity.
PRIVATE EXCHANGE: See Section 2(f).
PRIVATE EXCHANGE NOTES: See Section 2(f).
PROSPECTUS: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Notes covered by such
Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
PURCHASE AGREEMENT: See the introductory paragraph to this Agreement.
RECORDS: See Section 6(o).
REGISTRABLE NOTES: Notes, Private Exchange Notes and Exchange Notes
received in the Exchange Offer, in each case, that may not be sold (i) without
restriction under federal or state securities laws or (ii) pursuant to paragraph
(k) of Rule 144.
REGISTRATION STATEMENT: Any registration statement of the Company and
the Subsidiary Guarantors filed with the SEC under the Securities Act
(including, but not limited to, the Exchange Registration Statement, the Shelf
Registration Statement and any Subsequent Shelf Registration Statement) that
covers any of the Registrable Notes pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
RULE 144: Rule 144 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer or such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
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RULE 144A: Rule 144A promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
RULE 415: Rule 415 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
RULE 430A: Rule 430A promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
SECURITIES: The Notes, the Exchange Notes and the Private Exchange
Notes.
SECURITIES ACT: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
SHELF NOTICE: See Section 2(j).
SHELF REGISTRATION STATEMENT: See Section 3(b).
SUBSEQUENT SHELF REGISTRATION STATEMENT: See Section 3(b).
SUBSIDIARY GUARANTOR: Each subsidiary of the Company that guarantees
the obligations of the Company under the Notes and the Indenture.
TIA: The Trust Indenture Act of 1939, as amended.
TRUSTEE: The trustee under the Indenture and, if existent, the trustee
under any indenture governing the Exchange Notes and Private Exchange Notes (if
any).
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
2. EXCHANGE OFFER
(a) Unless the Exchange Offer would not be permitted by applicable
laws or a policy of the SEC, the Company shall (and shall
cause each Subsidiary Guarantor to) (i) prepare and file with
the SEC promptly after the date hereof, but in no event later
than the Filing Date, a registration statement (the "Exchange
Registration Statement") on an appropriate form under the
Securities Act with respect to an offer (the "Exchange Offer")
to the Holders of Notes to issue and deliver to such Holders,
in exchange for the Notes, a like principal amount of Exchange
Notes, (ii) cause the Exchange Registration Statement to
become effective as promptly as practicable after the filing
thereof, but in no event later than the Effectiveness Date,
(iii) keep the Exchange Registration Statement effective until
the consummation of the Exchange Offer in accordance with its
terms, and (iv) commence the Exchange Offer and use its
reasonable best efforts to issue on
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or prior to 30 days after the date on which the Exchange
Registration Statement is declared effective, Exchange Notes
in exchange for all Notes tendered prior thereto in the
Exchange Offer. The Exchange Offer shall not be subject to any
conditions, other than that the Exchange Offer does not
violate applicable law or any applicable interpretation of the
staff of the SEC.
(b) The Exchange Notes shall be issued under, and entitled to the
benefits of, (i) the Indenture or a trust indenture that is
identical to the Indenture (other than such changes as are
necessary to comply with any requirements of the SEC to effect
or maintain the qualifications thereof under the TIA) and (ii)
the Collateral Agreements.
(c) Interest on the Exchange Notes and Private Exchange Notes will
accrue from the last interest payment date on which interest
was paid on the Notes surrendered in exchange therefor or, if
no interest has been paid on the Notes, from the date of
original issue of the Notes. Each Exchange Note and Private
Exchange Note shall bear interest at the rate set forth
thereon; provided, that interest with respect to the period
prior to the issuance thereof shall accrue at the rate or
rates borne by the Notes from time to time during such period.
(d) The Company may require each Holder of a Note as a condition
to participation in the Exchange Offer to represent to the
Company that at the time of the consummation of the Exchange
Offer, (i) any Exchange Notes received by such Holder will be
acquired in the ordinary course of its business, (ii) such
Holder has not entered into any arrangement or understanding
with any Person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Notes in
violation of the provisions of the Securities Act, (iii) such
Holder is not an "affiliate" (as defined in Rule 405 of the
Securities Act) of the Company or if such Holder is an
affiliate such Holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the
extent applicable, (iv) if such Holder is not a broker-dealer,
that it is not engaged in, and does not intend to engage in,
the distribution of the Notes and (v) if such Holder is a
Participating Broker-Dealer, that it will deliver a Prospectus
in connection with any resale of the Exchange Notes.
(e) The Company shall (and shall cause each Subsidiary Guarantor
to) include within the Prospectus contained in the Exchange
Registration Statement a section entitled "Plan of
Distribution" reasonably acceptable to the Initial Purchaser
which shall contain all information that the SEC may require
with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule
13d-3 under the Exchange Act) of Exchange Notes received by
such broker-dealer in the Exchange Offer for its own account
in exchange for Notes that were acquired by it as a result of
market-making activities or other trading activities (a
"Participating Broker-Dealer"), whether such positions or
policies have been publicly disseminated by the staff of the
SEC or such positions or policies, in the judgment of the
Initial Purchaser, represent the prevailing views
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of the staff of the SEC. Such "Plan of Distribution" section
shall also allow, to the extent permitted by applicable
policies and regulations of the SEC, the use of the Prospectus
by all Persons subject to the prospectus delivery requirements
of the Securities Act, including, to the extent so permitted,
all Participating Broker-Dealers, and include a statement
describing the manner in which Participating Broker-Dealers
may resell the Exchange Notes. The Company shall keep the
Exchange Registration Statement effective and to amend and
supplement the Prospectus contained therein, in order to
permit such Prospectus to be lawfully delivered by all Persons
subject to the prospectus delivery requirements of the
Securities Act for such period of time as such Persons must
comply with such requirements in order to resell the Exchange
Notes (the "Applicable Period").
(f) If, upon consummation of the Exchange Offer, the Initial
Purchaser holds any Notes acquired by it and having the status
of an unsold allotment in the initial distribution, the
Company (upon the written request from the Initial Purchaser)
shall, simultaneously with the delivery of the Exchange Notes
pursuant to the Exchange Offer, issue and deliver to the
Initial Purchaser in exchange (the "Private Exchange") for the
Notes held by the Initial Purchaser, a like principal amount
of Senior Secured Notes (issued under the same Indenture as
the Exchange Notes) that are identical in all material
respects to the Exchange Notes except for the existence of
restrictions on transfer thereof under the Securities Act and
securities laws of the several states of the United States
(the "Private Exchange Notes"). The Private Exchange Notes
shall bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Company shall (and
shall cause each Subsidiary Guarantor to):
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Registration Statement, together
with an appropriate letter of transmittal that is an
exhibit to the Exchange Registration Statement and
any related documents;
(ii) keep the Exchange Offer open for not less than 30
days (or longer if required by applicable law) after
the date notice thereof is mailed to the Holders;
(iii) utilize the services of a depository for the Exchange
Offer with an address in the Borough of Manhattan,
The City of New York, which may be the Trustee or an
affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes
at any time prior to the close of business, New York
time, on the last Business Day on which the Exchange
Offer shall remain open; and
(v) otherwise comply in all material respects with all
applicable laws.
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(h) As soon as practicable after the close of the
Exchange Offer or the Private Exchange, as the case
may be, the Company shall (and shall cause each
Subsidiary Guarantor to):
(i) accept for exchange all Registrable Notes
validly tendered and not withdrawn pursuant
to the Exchange Offer or the Private
Exchange, as the case may be;
(ii) deliver to the Trustee for cancellation all
Registrable Notes so accepted for exchange;
and
(iii) cause the Trustee to authenticate and
deliver promptly to each Holder tendering
such Registrable Notes, Exchange Notes or
Private Exchange Notes, as the case may be,
equal in principal amount to the Notes of
such Holder so accepted for exchange.
(i) The Exchange Notes and the Private Exchange Notes may
be issued under the Indenture or an indenture
identical to the Indenture (other than such changes
as are necessary to comply with any requirements of
the SEC to effect or maintain the qualification
thereof under the TIA), which in either case will
provide that (i) the Exchange Notes will not be
subject to the transfer restrictions or additional
interest provisions set forth in the Indenture, (ii)
the Private Exchange Notes will be subject to the
transfer restrictions set forth in the Indenture, and
(iii) the Exchange Notes, the Private Exchange Notes
and the Notes, if any, will be deemed one class of
security (subject to the provisions of the Indenture)
and entitled to participate in all the security
granted by the Company pursuant to the Collateral
Agreements and in any Subsidiary Guarantee (as such
terms are defined in the Indenture) on an equal and
ratable basis.
(j) If, (i) any change in law or in applicable
interpretations thereof by the staff of the SEC would
not permit the consummation of the Exchange Offer,
(ii) the Exchange Offer is not consummated within 30
days after the Effectiveness Date, (iii) the Initial
Purchaser so requests with respect to the Notes (or
the Private Exchange Notes) not eligible to be
exchanged for Exchange Notes in the Exchange Offer
and held by it following consummation of the Exchange
Offer, or (iv) in the case of (A) any Holder not
permitted to participate in the Exchange Offer or (B)
any Holder participating in the Exchange Offer that
receives Exchange Notes that may not be sold without
restriction under state and federal securities laws
(other than due solely to the status of such Holder
as an affiliate of the Company within the meaning of
the Securities Act) and, in either case contemplated
by this clause (iv), such Holder notifies the Company
within 45 days of consummation of the Exchange Offer,
then in each case the Company shall promptly (and in
any event within five Business Days of such
notification) deliver to the Holders and the Trustee
notice thereof (the "Shelf Notice") and shall as
promptly as practicable thereafter (but in no event
later than the Shelf Filing Date) file an Initial
Shelf Registration Statement pursuant to Section 3.
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3. SHELF REGISTRATION
If a Shelf Notice is delivered pursuant to Section 2(j), then this
Section 3 shall apply to all Registrable Notes. Otherwise, upon consummation of
the Exchange Offer in accordance with Section 2, the provisions of this Section
3 shall apply solely with respect to (i) Notes held by any Holder thereof not
permitted to participate in the Exchange Offer, (ii) Private Exchange Notes, and
(iii) Exchange Notes that are not freely tradeable as contemplated by Section
2(j)(iv) hereof, provided in each case that the relevant Holder has duly
notified the Company within six months of the Exchange Offer as required by
Section 2(j)(iv).
(a) Initial Shelf Registration. The Company shall (and shall cause
each Subsidiary Guarantor to) as promptly as practicable file
with the SEC a Registration Statement for an offering to be
made on a continuous basis pursuant to Rule 415 covering all
of the Registrable Notes (the "Initial Shelf Registration
Statement") within 45 days of the delivery of the Shelf Notice
and shall (and shall cause each Subsidiary Guarantor to) use
its best efforts to cause such Initial Shelf Registration
Statement to be declared effective under the Securities Act as
promptly as practicable thereafter (but in no event more than
105 days after delivery of the Shelf Notice); provided,
however, that if the Company (and each Subsidiary Guarantor)
has not yet filed an Exchange Registration Statement, the
Company shall file (and shall cause each Subsidiary Guarantor
to file) with the SEC the Initial Shelf Registration Statement
on or prior to the Filing Date and shall use its reasonable
best efforts to cause such Initial Shelf Registration
Statement to be declared effective under the Securities Act on
or prior to the Effectiveness Date. The Initial Shelf
Registration Statement shall be on Form S-1 or another
appropriate form permitting registration of such Registrable
Notes for resale by Holders in the manner or manners
reasonably designated by them (including, without limitation,
one or more underwritten offerings). The Company and
Subsidiary Guarantors shall not permit any securities other
than the Registrable Notes to be included in any Shelf
Registration Statement. The Company shall (and shall cause
each Subsidiary Guarantor to) use its best efforts to keep the
Initial Shelf Registration Statement continuously effective
under the Securities Act until the date which is 24 months
from the Closing Date (the "Effectiveness Period"), or such
shorter period ending when (i) all Registrable Notes covered
by the Initial Shelf Registration Statement have been sold in
the manner set forth and as contemplated in the Initial Shelf
Registration Statement, (ii) a Subsequent Shelf Registration
Statement (as defined below) covering all of the Registrable
Notes covered by and not sold under the Initial Shelf
Registration Statement or an earlier Subsequent Shelf
Registration Statement has been declared effective under the
Securities Act or (iii) there cease to be any outstanding
Registrable Notes.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration Statement or any Subsequent Shelf Registration
Statement ceases to be effective for any reason at any time
during the Effectiveness Period (other than because of the
sale of all of the securities registered thereunder), the
Company shall (and shall cause each
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Subsidiary Guarantor to) use its best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness
thereof, and in any event shall within 30 days of such
cessation of effectiveness amend such Shelf Registration
Statement in a manner designed to obtain the withdrawal of the
order suspending the effectiveness thereof, or file (and cause
each Subsidiary Guarantor to file) an additional "shelf"
Registration Statement pursuant to Rule 415 covering all of
the Registrable Notes (a "Subsequent Shelf Registration
Statement"). If a Subsequent Shelf Registration Statement is
filed, the Company shall (and shall cause each Subsidiary
Guarantor to) use its best efforts to cause the Subsequent
Shelf Registration Statement to be declared effective as soon
as practicable after such filing and to keep such Subsequent
Shelf Registration Statement continuously effective for a
period equal to the number of days in the Effectiveness Period
less the aggregate number of days during which the Initial
Shelf Registration Statement or any Subsequent Shelf
Registration Statement was previously continuously effective.
As used herein the term "Shelf Registration Statement" means
the Initial Shelf Registration Statement and any Subsequent
Shelf Registration Statements.
(c) Supplements and Amendments. The Company shall promptly
supplement and amend any Shelf Registration Statement if
required by the rules, regulations or instructions applicable
to the registration form used for such Shelf Registration
Statement, if required by the Securities Act, or if reasonably
requested in writing by the Holders of a majority in aggregate
principal amount of the Registrable Notes covered by such
Shelf Registration Statement or by any underwriter of such
Registrable Notes.
(d) Provision of Information. No Holder of Registrable Notes shall
be entitled to include any of its Registrable Notes in any
Shelf Registration Statement pursuant to this Agreement unless
such Holder furnishes to the Company and the Trustee in
writing, within 20 days after receipt of a written request
therefor, such information as the Company and the Trustee,
after conferring with counsel with regard to information
relating to Holders that would be required by the SEC to be
included in such Shelf Registration Statement or Prospectus
included therein, may reasonably request for inclusion in any
Shelf Registration Statement or Prospectus included therein,
and no such Holder shall be entitled to Additional Interest
pursuant to Section 4 hereof unless and until such Holder
shall have provided such information.
4. ADDITIONAL INTEREST
(a) The Company and each Subsidiary Guarantor acknowledges and
agrees that the Holders of Registrable Notes will suffer
damages if the Company or any Subsidiary Guarantor fails to
fulfill its material obligations under Section 2 or Section 3
hereof and that it would not be feasible to ascertain the
extent of such damages with precision. Accordingly, the
Company and the Subsidiary Guarantors agree to pay additional
cash interest on the Notes ("Additional
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Interest") under the circumstances and to the extent set forth
below (each of which shall be given independent effect):
(i) if (A) neither the Exchange Registration Statement
nor the Initial Shelf Registration Statement has been
filed with the SEC on or prior to the Filing Date or
(B) notwithstanding that the Company has consummated
or will consummate an Exchange Offer, the Company is
required to file a Shelf Registration Statement and
such Shelf Registration Statement is not filed on or
prior to the date required by this Agreement, then,
commencing on the day after either such required
filing date, Additional Interest shall accrue on the
Notes over and above any stated interest at a rate of
0.25% per annum of the principal amount of such Notes
for the first 90 days immediately following such
filing date, such Additional Interest rate increasing
by an additional 0.25% per annum at the beginning of
each subsequent 90-day period, subject to the
provisos in the last sentence of this paragraph;
(ii) if (A) neither the Exchange Registration Statement
nor the Initial Shelf Registration Statement is
declared effective by the SEC on or prior to the
Effectiveness Date, or (B) notwithstanding that the
Company has consummated or will consummate an
Exchange Offer, the Company is required to file a
Shelf Registration Statement and such Shelf
Registration Statement is not declared effective by
the SEC on or prior to the 90th day following the
date such Shelf Registration Statement was filed,
then, commencing on the day after either such
required effective date, Additional Interest shall
accrue on the Notes over and above any stated
interest at a rate of 0.25% per annum of the
principal amount of such Notes for the first 90 days
immediately following such effective date, such
Additional Interest rate increasing by an additional
0.25% per annum at the beginning of each subsequent
90-day period, subject to the provisos in the last
sentence of this paragraph;
(iii) if (A) the Company (and any Subsidiary Guarantor) has
not exchanged Exchange Notes for all Notes validly
tendered in accordance with the terms of the Exchange
Offer on or prior to the date that is 30 days after
the Effectiveness Date, (B) the Exchange Registration
Statement ceases to be effective at any time prior to
the time that the Exchange Offer is consummated, (C)
if applicable, a Shelf Registration Statement has
been declared effective and such Shelf Registration
Statement ceases to be effective at any time prior to
the second anniversary of its effective date (other
than after such time as all Notes have been disposed
of thereunder) and is not declared effective again
within 30 days, or (D) pending the announcement of a
material corporate transaction, the Company issues a
written notice pursuant to Section 6(e)(v) or (vi)
that a Shelf Registration Statement or Exchange
Registration Statement is unusable and the aggregate
number of days in any 365 day period for which all
such notices
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issued or required to be issued, have been, or were
required to be, in effect exceeds 120 days in the
aggregate or 30 days consecutively, in the case of a
Shelf Registration Statement, or 15 days in the
aggregate in the case of an Exchange Registration
Statement, then Additional Interest shall accrue on
the Notes over and above any stated interest at a
rate of 0.25% per annum of the principal amount of
such Notes for the first 90 days commencing on (w)
the 31st day after the Effectiveness Date, in the
case of clause (A) above, or (x) the date the
Exchange Registration Statement ceases to be
effective without being declared effective again
within 30 days, in the case of clause (B) above, or
(y) the day such Shelf Registration Statement ceases
to be effective, in the case of clause (C) above, or
(z) the day the Exchange Registration Statement or
Shelf Registration Statement ceases to be usable, in
case of clause (D) above, such Additional Interest
rate increasing by an additional 0.25% per annum at
the beginning of each subsequent 90-day period,
subject to the provisos in the last sentence of this
paragraph;
provided, however, that Additional Interest will not accrue
under more than one of the foregoing clauses (1) through (3)
at any one time; provided further, however, that the maximum
Additional Interest rate on the Notes may not exceed at any
one time in the aggregate 1.0% per annum; and provided
further, however, that (1) upon the filing of the Exchange
Registration Statement or Shelf Registration Statement (in the
case of clause (i) above), (2) upon the effectiveness of the
Exchange Registration Statement or Shelf Registration
Statement (in the case of clause (ii) above), or (3) upon the
exchange of Exchange Notes for all Notes tendered (in the case
of clause (iii)(A) above), or upon the effectiveness of the
Exchange Registration Statement which had ceased to remain
effective (in the case of clause (iii)(B) above), or upon the
effectiveness of a Shelf Registration Statement which had
ceased to remain effective (in the case of clause (iii)(C)
above), or upon the effectiveness of such Shelf Registration
Statement or Exchange Registration Statement (in the case of
clause (iii)(D) above), Additional Interest on the Notes as a
result of such clause (or the relevant subclause thereof), as
the case may be, shall cease to accrue.
(b) The Company shall notify the Trustee within 3 Business Days
after each and every date on which an event occurs in respect
of which Additional Interest is required to be paid (an "Event
Date"). Any amounts of Additional Interest due pursuant to
clause (a)(i), (a)(ii) or (a)(iii) of this Section 4 will be
payable in cash, on the dates and in the manner provided in
the Indenture and whether or not any cash interest would then
be payable on such date, commencing with the first such
semi-annual date occurring after any such Additional Interest
commences to accrue. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest
rate by the principal amount of the Notes, multiplied by a
fraction, the numerator of which is the number of days such
Additional Interest rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve
30-day months and, in the case of a
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partial month, the actual number of days elapsed), and the
denominator of which is 360.
5. HOLD-BACK AGREEMENTS
The Company agrees that it will not effect any public or private sale
or distribution (including a sale pursuant to Regulation D under the Securities
Act) of any securities the same as or similar to those covered by a Registration
Statement filed pursuant to Section 2 or 3 hereof (other than Additional Notes
(as defined in the Indenture) issued under the Indenture), or any securities
convertible into or exchangeable or exercisable for such securities, during the
10 days prior to, and during the 90-day period beginning on, the effective date
of any Registration Statement filed pursuant to Sections 2 and 3 hereof unless
the Holders of a majority in the aggregate principal amount of the Registrable
Notes to be included in such Registration Statement consent, if the managing
underwriter thereof so requests in writing.
6. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement pursuant to
Sections 2 or 3 hereof, the Company shall (and shall cause each Subsidiary
Guarantor to) effect such registrations to permit the sale of such securities
covered thereby in accordance with the intended method or methods of disposition
thereof, and pursuant thereto and in connection with any Registration Statement
filed by the Company hereunder, the Company shall (and shall cause each
Subsidiary Guarantor to):
(a) Prepare and file with the SEC as soon as practicable after the
date hereof but in any event on or prior to the Filing Date,
the Exchange Registration Statement or if the Exchange
Registration Statement is not filed because of the
circumstances contemplated by Section 2(j), a Shelf
Registration Statement as prescribed by Section 3, and use its
reasonable best efforts to cause each such Registration
Statement to become effective and remain effective as provided
herein; provided that, if (1) a Shelf Registration Statement
is filed pursuant to Section 3 or (2) a Prospectus contained
in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, before filing any
Registration Statement or Prospectus or any amendments or
supplements thereto the Company shall (and shall cause each
Subsidiary Guarantor to), if requested, furnish at no charge
to the Holders of the Registrable Notes to be registered
pursuant to such Shelf Registration Statement, each
Participating Broker-Dealer, the managing underwriters, if
any, and each of their respective counsel, a reasonable
opportunity to review copies of all such documents (including
copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed (in
each case at least 5 Business Days prior to such filing). The
Company and each Subsidiary Guarantor shall not file any such
Registration Statement or Prospectus or any amendments or
supplements thereto in respect of which the Holders must
provide information for the inclusion therein without the
Holders being afforded an opportunity to review such
documentation if the holders of a majority in aggregate
principal amount of
12
the Registrable Notes covered by such Registration Statement,
or any such Participating Broker-Dealer, as the case may be,
or the managing underwriters, if any, or any of their
respective counsel shall reasonably object in writing on a
timely basis. A Holder shall be deemed to have reasonably
objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains an untrue statement of a
material fact or omits to state any material fact necessary to
make the statements therein not misleading or fails to comply
with the applicable requirements of the Securities Act.
(b) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture
(or other indenture relating to the Registrable Notes) to be
qualified under the TIA not later than the effective date of
the first Registration Statement; and in connection therewith,
to effect such changes to such indenture as may be required
for such indenture to be so qualified in accordance with the
terms of the TIA; and execute, and use its reasonable best
efforts to cause such 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 such
indenture to be so qualified in a timely manner.
(c) Prepare and file with the SEC such pre-effective amendments
and post-effective amendments to each Shelf Registration
Statement or Exchange Registration Statement, as the case may
be, as may be necessary to keep such Registration Statement
continuously effective for the Effectiveness Period or the
Applicable Period, as the case may be; cause the related
Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with the
provisions of the Securities Act and the Exchange Act
applicable to them with respect to the disposition of all
securities covered by such Registration Statement as so
amended or in such Prospectus as so supplemented and with
respect to the subsequent resale of any securities being sold
by a Participating Broker-Dealer covered by any such
Prospectus. The Company and each Subsidiary Guarantor shall
not, during the Applicable Period, voluntarily take any action
that would result in selling Holders of the Registrable Notes
covered by a Registration Statement or Participating
Broker-Dealers seeking to sell Exchange Notes not being able
to sell such Registrable Notes or such Exchange Notes during
that period, unless such action is required by applicable law,
rule or regulation or permitted by this Agreement.
(d) Furnish to such selling Holders and Participating
Broker-Dealers who so request in writing (i) upon the
Company's receipt, a copy of the order of the SEC declaring
such Registration Statement and any post effective amendment
thereto effective, (ii) such reasonable number of copies of
such Registration Statement and of each amendment and
supplement thereto (in each case including any documents
incorporated therein by reference and all exhibits), (iii)
such
13
reasonable number of copies of the Prospectus included in such
Registration Statement (including each preliminary Prospectus)
and each amendment and supplement thereto, and such reasonable
number of copies of the final Prospectus as filed by the
Company and each Subsidiary Guarantor pursuant to Rule 424(b)
under the Securities Act, in conformity with the requirements
of the Securities Act and each amendment and supplement
thereto, and (iv) such other documents (including any
amendments required to be filed pursuant to clause (c) of this
Section 6), as any such Person may reasonably request in
writing. The Company and the Subsidiary Guarantors hereby
consent to the use of the Prospectus by each of the selling
Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, and the underwriters or
agents, if any, and dealers, if any, in connection with the
offering and sale of the Registrable Notes covered by, or the
sale by Participating Broker-Dealers of the Exchange Notes
pursuant to, such Prospectus and any amendment or supplement
thereto.
(e) If (1) a Shelf Registration Statement is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period relating thereto, the Company shall notify
in writing the selling Holders of Registrable Notes, or each
such Participating Broker-Dealer, as the case may be, and the
managing underwriters, if any, and each of their respective
counsel promptly (but in any event within 2 Business Days) (i)
when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to
a Registration Statement or any post-effective amendment, when
the same has become effective (including in such notice a
written statement that any Holder may, upon request, obtain,
without charge, one conformed copy of such Registration
Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to
be incorporated by reference and exhibits), (ii) of the
issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement or of any order
preventing or suspending the use of any Prospectus or the
initiation of any proceedings for that purpose, (iii) if at
any time when a Prospectus is required by the Securities Act
to be delivered in connection with sales of the Registrable
Notes the representations and warranties of the Company and
any Subsidiary Guarantor contained in any agreement (including
any underwriting agreement) contemplated by Section 6(n)
hereof cease to be true and correct, (iv) of the receipt by
the Company or any Subsidiary Guarantor of any notification
with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or
any of the Registrable Notes or the Exchange Notes to be sold
by any Participating Broker-Dealer for offer or sale in any
jurisdiction, or the initiation or threatening of any
proceeding for such purpose, (v) of the happening of any
event, the existence of any condition of any information
becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of
14
any changes in, or amendments or supplements to, such
Registration Statement, Prospectus or documents so that, in
the case of the Registration Statement and the Prospectus, it
will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, (vi)
of any reasonable determination by the Company or any
Subsidiary Guarantor that a post-effective amendment to a
Registration Statement would be appropriate and (vii) of any
request by the SEC for amendments to the Registration
Statement or supplements to the Prospectus or for additional
information relating thereto.
(f) Use its reasonable best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement
or of any order preventing or suspending the use of a
Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Notes or the Exchange
Notes to be sold by any Participating Broker-Dealer, for sale
in any jurisdiction, and, if any such order is issued, to use
its reasonable best efforts to obtain the withdrawal of any
such order at the earliest possible date.
(g) If (A) a Shelf Registration Statement is filed pursuant to
Section 3, (B) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period or (C) reasonably requested in writing by
the managing underwriters, if any, or the Holders of a
majority in aggregate principal amount of the Registrable
Notes being sold in connection with an underwritten offering,
(i) promptly incorporate in a Prospectus supplement or
post-effective amendment such information or revisions to
information therein relating to such underwriters or selling
Holders as the managing underwriters, if any, or such Holders
or their counsel reasonably request in writing to be included
or made therein and (ii) make all required filings of such
Prospectus supplement or such post-effective amendment as soon
as practicable after the Company has received notification of
the matters to be incorporated in such Prospectus supplements
or post-effective amendment.
(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange
Registration Statement by any Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, use
its reasonable best efforts to register or qualify, and
cooperate with the selling Holders of Registrable Notes or
each such Participating Broker-Dealer, as the case may be, the
underwriters, if any, and their respective counsel in
connection with the registration or qualification (or
exemption from such registration or qualification) of such
Registrable Notes or Exchange Notes, as the case may be, for
offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any selling Holder,
Participating Broker-Dealer or any managing underwriter or
underwriters, if any, reasonably request in writing; provided
that where Exchange Notes held by Participating Broker-Dealers
or
15
Registrable Notes are offered other than through an
underwritten offering, the Company and each Subsidiary
Guarantor agree to cause its counsel to perform Blue Sky
investigations and file any registrations and qualifications
required to be filed pursuant to this Section 6(h), keep each
such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or
things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Notes held
by Participating Broker-Dealers or the Registrable Notes
covered by the applicable Registration Statement; provided
that neither the Company nor any Subsidiary Guarantor shall be
required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any
action that would subject it to general service of process in
any such jurisdiction where it is not then so subject or (C)
subject itself to taxation in any such jurisdiction where it
is not then so subject.
(i) If (A) a Shelf Registration Statement is filed pursuant to
Section 3 or (B) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 is
requested to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, cooperate with the selling
Holders of Registrable Notes and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be
sold, which certificates shall not bear any restrictive
legends and shall be in a form eligible for deposit with The
Depository Trust Company, and enable such Registrable Notes to
be in such denominations and registered in such names as the
managing underwriter or underwriters, if any, or Holders may
reasonably request in writing.
(j) Use its reasonable best efforts to cause the Registrable Notes
covered by any Registration Statement to be registered with or
approved by such governmental agencies or authorities as may
be necessary to enable the seller or sellers thereof or the
underwriter, if any, to consummate the disposition of such
Registrable Notes, except as may be required solely as a
consequence of the nature of such selling Holder's business,
in which case the Company shall (and shall cause each
Subsidiary Guarantor to) cooperate in all reasonable respects
with the filing of such Registration Statement and the
granting of such approvals; provided that neither the Company
nor any Subsidiary Guarantor shall be required to (A) qualify
generally to do business in any jurisdiction where it is not
then so qualified, (B) take any action that would subject it
to general service of process in any jurisdiction where it is
not then so subject or (C) subject itself to taxation in any
such jurisdiction where it is not then so subject.
(k) If (1) a Shelf Registration Statement is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period,
16
upon the occurrence of any event contemplated by Section
6(e)(v) or 6(e)(vi) hereof, as promptly as practicable,
prepare and file with the SEC, at the expense of the Company
and the Subsidiary Guarantors, a supplement or post-effective
amendment to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, or file any other
required document so that, as thereafter delivered to the
purchasers of the Registrable Notes being sold thereunder or
to the purchasers of the Exchange Notes to whom such
Prospectus will be delivered by a Participating Broker-Dealer,
such Prospectus will not 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, in
light of the circumstances under which they were made, not
misleading, and, if SEC review is required, use its reasonable
best efforts to cause such post-effective amendment to be
declared effective as soon as possible.
(l) Use its reasonable best efforts to cause the Registrable Notes
covered by a Registration Statement to be rated with such
appropriate rating agencies, if so requested in writing by the
Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Registration Statement or
the managing underwriter or underwriters, if any.
(m) Prior to the initial issuance of the Exchange Notes, (i)
provide the Trustee with one or more certificates for the
Registrable Notes in a form eligible for deposit with The
Depository Trust Company and (ii) provide a CUSIP number for
the Exchange Notes.
(n) If a Shelf Registration Statement is filed pursuant to Section
3, enter into such agreements (including an underwriting
agreement in form, scope and substance as is customary in
underwritten offerings of debt securities similar to the
Notes, as may be appropriate in the circumstances) and take
all such other actions in connection therewith (including
those reasonably requested in writing by the managing
underwriters, if any, or the Holders of a majority in
aggregate principal amount of the Registrable Notes being
sold) in order to expedite or facilitate the registration or
the disposition of such Registrable Notes, and in such
connection, whether or not an underwriting agreement is
entered into and whether or not the registration is an
Underwritten Registration, (i) make such representations and
warranties to the Holders and the underwriters, if any, with
respect to the business of the Company and its subsidiaries as
then conducted, and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated
by reference therein, in each case, in form, substance and
scope as are customarily made by issuers to underwriters in
underwritten offerings of debt securities similar to the
Notes, as may be appropriate in the circumstances, and confirm
the same if and when reasonably required; (ii) obtain an
opinion of counsel to the Company and the Subsidiary
Guarantors 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
17
aggregate principal amount of the Registrable Notes being
sold), addressed to each selling Holder and each of the
underwriters, if any, covering the matters customarily covered
in opinions of counsel to the Company and the Subsidiary
Guarantors requested in underwritten offerings of debt
securities similar to the Notes, as may be appropriate in the
circumstances; (iii) obtain "cold comfort" letters and updates
thereof (which letters and updates (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriters) from the independent certified public
accountants of the Company and the Subsidiary Guarantors (and,
if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial
statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each of
the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings of
debt securities similar to the Notes, as may be appropriate in
the circumstances, and such other matters as reasonably
requested in writing by the underwriters; and (iv) deliver
such documents and certificates as may be reasonably requested
in writing by the Holders of a majority in aggregate principal
amount of the Registrable Notes being sold and the managing
underwriters, if any, to evidence the continued validity of
the representations and warranties of the Company and its
subsidiaries made pursuant to clause (i) above and to evidence
compliance with any conditions contained in the underwriting
agreement or other similar agreement entered into by the
Company or any Subsidiary Guarantor.
(o) If (1) a Shelf Registration Statement is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make available for inspection by any
selling Holder of such Registrable Notes being sold, or each
such Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of
Registrable Notes, if any, and any attorney, accountant or
other agent retained by any such selling Holder or each such
Participating Broker-Dealer, as the case may be, or
underwriter (collectively, the "Inspectors"), at the offices
where normally kept, during reasonable business hours, all
financial and other records and pertinent corporate documents
of the Company and its subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them to
exercise any applicable due diligence responsibilities, and
cause the officers, directors and employees of the Company and
its subsidiaries to supply all information reasonably
requested in writing by any such Inspector in connection with
such Registration Statement. Each Inspector shall agree in
writing that it will keep the Records confidential and not
disclose any of the Records unless (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or
omission in such Registration Statement, (ii) the release of
such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction, (iii) the information
in such Records is public or has been made generally available
to the public other than as
18
a result of a disclosure or failure to safeguard by such
Inspector or (iv) disclosure of such information is, in the
reasonable written opinion of counsel for any Inspector,
necessary or advisable in connection with any action, claim,
suit or proceeding, directly or indirectly, involving or
potentially involving such Inspector and arising out of, based
upon, related to, or involving this Agreement, or any
transaction contemplated hereby or arising hereunder. Each
selling Holder of such Registrable Notes and each such
Participating Broker-Dealer will be required to agree 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 Inspector, each selling Holder of such
Registrable Notes and each such Participating Broker-Dealer
will be required to further agree that it will, upon learning
that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and, to the
extent practicable, use its best efforts to allow the Company,
at its expense, to undertake appropriate action to prevent
disclosure of the Records deemed confidential at its expense.
(p) Comply with all applicable rules and regulations of the SEC
and make generally available to the security holders of the
Company with regard to any applicable Registration Statement
earning statements satisfying the provisions of section 11(a)
of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than 45
days after 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 Notes 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
statements shall cover said 12-month periods.
(q) Upon consummation of an Exchange Offer or Private Exchange,
obtain an opinion of counsel to the Company and the Subsidiary
Guarantors (in form, scope and substance reasonably
satisfactory to the Initial Purchaser), addressed to the
Trustee for the benefit of all Holders participating in the
Exchange Offer or Private Exchange, as the case may be, to the
effect that (i) the Company and the Subsidiary Guarantors have
duly authorized, executed and delivered the Exchange Notes or
the Private Exchange Notes, as the case may be, and the
Indenture, (ii) the Exchange Notes or the Private Exchange
Notes, as the case may be, and the Indenture constitute legal,
valid and binding obligations of the Company and the
Subsidiary Guarantors, enforceable against the Company and the
Subsidiary Guarantors in accordance with their respective
terms, except as such enforcement may be subject to customary
United States and foreign exceptions and (iii) all obligations
of the Company and the Subsidiary Guarantors under the
Exchange Notes or the Private Exchange Notes, as the case may
be, and the Indenture are secured by Liens (as defined in the
Indenture) on the assets securing the
19
obligations of the Company and the Subsidiary Guarantors under
the Notes, the Indenture and the Collateral Agreements to the
extent and as discussed in the Registration Statement.
(r) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by the
Holders to the Company and the Subsidiary Guarantors (or to
such other Person as directed by the Company and the
Subsidiary Guarantors) in exchange for the Exchange Notes or
the Private Exchange Notes, as the case may be, the Company
and the Subsidiary Guarantors shall xxxx, or cause to be
marked, on such Registrable Notes that the Exchange Notes or
the Private Exchange Notes, as the case may be, are being
issued as substitute evidence of the indebtedness originally
evidenced by the Registrable Notes; provided that in no event
shall such Registrable Notes be marked as paid or otherwise
satisfied.
(s) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Notes and
their respective counsel in connection with any filings
required to be made with the NASD.
(t) Use its reasonable best efforts to take all other steps
reasonably necessary to effect the registration of the
Registrable Notes covered by a Registration Statement
contemplated hereby.
(u) The Company may require each seller of Registrable Notes or
Participating Broker-Dealer as to which any registration is
being effected to furnish to the Company such information
regarding such seller or Participating Broker-Dealer and the
distribution of such Registrable Notes as the Company may,
from time to time, reasonably request in writing. The Company
may exclude from such registration the Registrable Notes of
any seller who fails to furnish such information within a
reasonable time (which time in no event shall exceed 45 days)
after receiving such request. Each seller of Registrable Notes
or Participating Broker-Dealer as to which any registration is
being effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make the
information previously furnished by such seller not materially
misleading.
(v) Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes
or Exchange Notes to be sold by such Participating
Broker-Dealer, as the case may be, that, upon receipt of any
notice from the Company of the happening of any event of the
kind described in Section 6(e)(ii), 6(e)(iv), 6(e)(v), or
6(e)(vi), such Holder will forthwith discontinue disposition
of such Registrable Notes covered by a Registration Statement
and such Participating Broker-Dealer will forthwith
discontinue disposition of such Exchange Notes pursuant to any
Prospectus and, in each case, forthwith discontinue
dissemination of such Prospectus until such Holder's or
Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus
20
contemplated by Section 6(k), or until it is advised in
writing (the "Advice") by the Company and the Subsidiary
Guarantors that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or
supplements thereto and, if so directed by the Company and the
Subsidiary Guarantors, such Holder or Participating
Broker-Dealer, as the case may be, will deliver to the Company
all copies, other than permanent file copies, then in such
Holder's or Participating Broker-Dealer's possession, of the
Prospectus covering such Registrable Notes current at the time
of the receipt of such notice. In the event the Company and
the Subsidiary Guarantors shall give any such notice, the
Applicable Period shall be extended by the number of days
during such periods from and including the date of the giving
of such notice to and including the date when each
Participating Broker-Dealer shall have received (x) the copies
of the supplemented or amended Prospectus contemplated by
Section 6(k) or (y) the Advice.
7. REGISTRATION EXPENSES
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company and the
Subsidiary Guarantors shall be borne by the Company and the
Subsidiary Guarantors, whether or not the Exchange Offer or a
Shelf Registration Statement is filed or becomes effective,
including, without limitation, (i) all registration and filing
fees, including, without limitation, (A) fees with respect to
filings required to be made with the NASD in connection with
any underwritten offering and (B) fees and expenses of
compliance with state securities or Blue Sky laws as provided
in Section 6(h) hereof (including, without limitation,
reasonable fees and disbursements of counsel in connection
with Blue Sky qualifications of the Registrable Notes or
Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the
laws of such jurisdictions (x) where the Holders are located,
in the case of the Exchange Notes, or (y) as provided in
Section 6(h), in the case of Registrable Notes or Exchange
Notes to be sold by a Participating Broker-Dealer during the
Applicable Period), (ii) printing expenses, including, without
limitation, expenses of printing Prospectuses if the printing
of Prospectuses is requested by the managing underwriter or
underwriters, if any, or by the Holders of a majority in
aggregate principal amount of the Registrable Notes included
in any Registration Statement or by any Participating
Broker-Dealer during the Applicable Period, as the case may
be, (iii) messenger, telephone and delivery expenses incurred
in connection with the performance of their obligations
hereunder, (iv) fees and disbursements of counsel for the
Company, the Subsidiary Guarantors and, subject to Section
7(b), the Holders, (v) fees and disbursements of all
independent certified public accountants referred to in
Section 6 (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or
incident to such performance), (vi) rating agency fees and the
fees and expenses incurred in connection with the listing of
the Securities to be registered on any securities exchange,
(vii) Securities Act liability insurance, if the Company and
the Subsidiary Guarantors desire such insurance, (viii) fees
and expenses of all
21
other Persons retained by the Company and the Subsidiary
Guarantors, (ix) fees and expenses of any "qualified
independent underwriter" or other independent appraiser
participating in an offering pursuant to Section 3 of Schedule
E to the bylaws of the NASD, but only where the need for such
a "qualified independent underwriter" arises due to a
relationship with the Company and the Subsidiary Guarantors,
(x) internal expenses of the Company and the Subsidiary
Guarantors (including, without limitation, all salaries and
expenses of officers and employees of the Company or the
Subsidiary Guarantors performing legal or accounting duties),
(xi) the expense of any annual audit, (xii) the fees and
expenses of the Trustee and the Exchange Agent and (xiii) the
expenses relating to printing, word processing and
distributing all Registration Statements, underwriting
agreements, securities sales agreements, indentures and any
other documents necessary in order to comply with this
Agreement.
(b) The Company and the Subsidiary Guarantors shall reimburse the
Holders for the reasonable fees and disbursements of not more
than one counsel chosen by the Holders of a majority in
aggregate principal amount of the Registrable Notes to be
included in any Registration Statement. The Company and the
Subsidiary Guarantors shall pay all documentary, stamp,
transfer or other transactional taxes attributable to the
issuance or delivery of the Exchange Notes or Private Exchange
Notes in exchange for the Notes; provided that the Company
shall not be required to pay taxes payable in respect of any
transfer involved in the issuance or delivery of any Exchange
Note or Private Exchange Note in a name other than that of the
Holder of the Note in respect of which such Exchange Note or
Private Exchange Note is being issued. The Company and the
Subsidiary Guarantors shall reimburse the Holders for fees and
expenses (including reasonable fees and expenses of counsel to
the Holders) relating to any enforcement of any rights of the
Holders under this Agreement.
8. INDEMNIFICATION
(a) Indemnification by the Company and the Subsidiary Guarantors.
The Company and the Subsidiary Guarantors jointly and
severally agree to indemnify and hold harmless each Holder of
Registrable Notes, Exchange Notes or Private Exchange Notes
and each Participating Broker-Dealer selling Exchange Notes
during the Applicable Period, each Person, if any, who
controls each such Holder (within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act) and
the officers, directors and partners of each such Holder,
Participating Broker-Dealer and controlling person, to the
fullest extent lawful, from and against any and all losses,
claims, damages, liabilities, costs (including, without
limitation, reasonable costs of preparation and reasonable
attorneys' fees as provided in this Section 8) and expenses
(including, without limitation, reasonable costs and expenses
incurred in connection with investigating, preparing, pursuing
or defending against any of the foregoing) (collectively,
"Losses"), as incurred, directly or indirectly caused by,
related to, based upon, arising out of or in connection with
any untrue statement or alleged untrue statement of a material
22
fact contained in any Registration Statement, Prospectus or
form of prospectus, or in any amendment or supplement thereto,
or in any preliminary prospectus, or any omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading, except insofar as such Losses are primarily based
upon information relating to such Holder or Participating
Broker-Dealer and furnished in writing to the Company and the
Subsidiary Guarantors (or reviewed and approved in writing) by
such Holder or Participating Broker-Dealer or their counsel
expressly for use therein; provided, however, that the Company
and the Subsidiary Guarantors will not be liable to any
Indemnified Party (as defined below) under this Section 8 to
the extent Losses were primarily caused by an untrue statement
or omission or alleged untrue statement or omission that was
contained or made in any preliminary prospectus and corrected
in the Prospectus or any amendment or supplement thereto if
(i) the Prospectus does not contain any other untrue statement
or omission or alleged untrue statement or omission of a
material fact that was the subject matter of the related
proceedings, (ii) any such Losses resulted from an action,
claim or suit by any Person who purchased Registrable Notes or
Exchange Notes which are the subject thereof from such
Indemnified Party and (iii) it is established in the related
proceeding that such Indemnified Party failed to deliver or
provide a copy of the Prospectus (as amended or supplemented)
to such Person with or prior to the confirmation of the sale
of such Registrable Notes or Exchange Notes sold to such
Person if required by applicable law, unless such failure to
deliver or provide a copy of the Prospectus (as amended or
supplemented) was a result of noncompliance by the Company
with Section 6 of this Agreement. The Company and the
Subsidiary Guarantors also agree to indemnify underwriters,
selling brokers, dealer managers and similar securities
industry professionals participating in the distribution,
their officers, directors, agents and employees and each
Person who controls such Persons (within the meaning of
Section 15 of the Securities Act or Section 20(a) of the
Exchange Act) to the same extent as provided above with
respect to the indemnification of the Holders or the
Participating Broker-Dealer.
(b) Indemnification by Holder. In connection with any Registration
Statement, Prospectus or form of prospectus, any amendment or
supplement thereto, or any preliminary prospectus in which a
Holder is participating, such Holder shall furnish to the
Company and the Subsidiary Guarantors in writing such
information as the Company and the Subsidiary Guarantors
reasonably request for use in connection with any Registration
Statement, Prospectus or form of prospectus, any amendment or
supplement thereto, or any preliminary prospectus and shall
indemnify and hold harmless the Company, the Subsidiary
Guarantors, their respective directors and each Person, if
any, who controls the Company and the Subsidiary Guarantors
(within the meaning of Section 15 of the Securities Act and
Section 20(a) of the Exchange Act), and the directors,
officers and partners of such controlling persons, to the
fullest extent lawful, from and against all Losses arising out
of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration
Statement, Prospectus or form of
23
prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading to
the extent, but only to the extent, that such losses are
finally judicially determined by a court of competent
jurisdiction in a final, unappealable order to have resulted
primarily from an untrue statement or alleged untrue statement
of a material fact or omission or alleged omission of a
material fact contained in or omitted from any information so
furnished in writing by such Holder to the Company and the
Subsidiary Guarantors expressly for use therein.
Notwithstanding the foregoing, in no event shall the liability
of any selling Holder be greater in amount than such Holder's
Maximum Contribution Amount (as defined below).
(c) Conduct of Indemnification Proceedings. If any proceeding
shall be brought or asserted against any Person entitled to
indemnity hereunder (an "Indemnified Party"), such Indemnified
Party shall promptly notify the party or parties from which
such indemnity is sought (the "Indemnifying Party" or
"Indemnifying Parties", as applicable) in writing; provided,
that the failure to so notify the Indemnifying Parties shall
not relieve the Indemnifying Parties from any obligation or
liability except to the extent (but only to the extent) that
it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal)
that the Indemnifying Parties have been prejudiced materially
by such failure.
The Indemnifying Party shall have the right, exercisable by giving
written notice to an Indemnified Party, within 20 Business Days after receipt of
written notice from such Indemnified Party of such proceeding, to assume, at its
expense, the defense of any such proceeding, provided, that an Indemnified Party
shall have the right to employ separate counsel in any such proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party or parties unless: (1) the
Indemnifying Party has agreed to pay such fees and expenses; or (2) the
Indemnifying Party shall have failed promptly to assume the defense of such
proceeding or shall have failed to employ counsel reasonably satisfactory to
such Indemnified Party; or (3) the named parties to any such proceeding
(including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party or any of its affiliates or controlling persons, and such
Indemnified Party shall have been advised by counsel that there may be one or
more defenses available to such Indemnified Party that are in addition to, or in
conflict with, those defenses available to the Indemnifying Party or such
affiliate or controlling person (in which case, if such Indemnified Party
notifies the Indemnifying Parties in writing that it elects to employ separate
counsel at the expense of the Indemnifying Parties, the Indemnifying Parties
shall not have the right to assume the defense and the reasonable fees and
expenses of such counsel shall be at the expense of the Indemnifying Party; it
being understood, however, that, the Indemnifying Party shall not, in connection
with any one such proceeding or separate but substantially similar or related
proceedings in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time for such Indemnified Party).
24
No Indemnifying Party shall be liable for any settlement of any such
proceeding effected without its written consent, which shall not be unreasonably
withheld, but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such proceeding, each Indemnifying Party
jointly and severally agrees, subject to the exceptions and limitations set
forth above, to indemnify and hold harmless each Indemnified Party from and
against any and all Losses by reason of such settlement or judgment. The
Indemnifying Party shall not consent to the entry of any judgment or enter into
any settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to each Indemnified Party of a release, in form and
substance reasonably satisfactory to the Indemnified Party, from all liability
in respect of such proceeding for which such Indemnified Party would be entitled
to indemnification hereunder (whether or not any Indemnified Party is a party
thereto).
(d) Contribution. If the indemnification provided for in this
Section 8 is unavailable to an Indemnified Party or is
insufficient to hold such Indemnified Party harmless for any
Losses in respect of which this Section 8 would otherwise
apply by its terms (other than by reason of exceptions
provided in this Section 8), then each applicable Indemnifying
Party, in lieu of indemnifying such Indemnified Party, shall
have a joint and several obligation to contribute to the
amount paid or payable by such Indemnified Party as a result
of such Losses, in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party, on the
one hand, and such Indemnified Party, on the other hand, in
connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant
equitable considerations. The relative fault of such
Indemnifying Party, on the one hand, and Indemnified Party, on
the other hand, shall be determined by reference to, among
other things, whether any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such
Indemnifying Party or Indemnified Party, and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent any such statement or
omission. The amount paid or payable by an Indemnified Party
as a result of any Losses shall be deemed to include any legal
or other fees or expenses incurred by such party in connection
with any proceeding, to the extent such party would have been
indemnified for such fees or expenses if the indemnification
provided for in Section 8(a) or 8(b) was available to such
party.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by another method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8(d), a selling Holder shall not
be required to contribute, in the aggregate, any amount in excess of such
Holder's Maximum Contribution Amount. A selling Holder's "Maximum Contribution
Amount" shall equal the excess of (i) the aggregate proceeds received by such
Holder pursuant to the sale of such Registrable Notes or Exchange Notes over
(ii) the aggregate amount of damages that such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person
25
who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 8(d) are several in
proportion to the respective principal amount of the Registrable Securities held
by each Holder hereunder and not joint. The Company's and Subsidiary Guarantors'
obligations to contribute pursuant to this Section 8(d) are joint and several.
The indemnity and contribution agreements contained in this Section 8
are in addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
9. RULES 144 AND 144A
The Company covenants that it shall (a) file the reports required to be
filed by it (if so required) under the Securities Act and the Exchange Act in a
timely manner and, if at any time the Company is not required to file such
reports, it will, upon the written request of any Holder of Registrable Notes,
make publicly available other information necessary to permit sales pursuant to
Rule 144 and 144A and (b) take such further action as any Holder may reasonably
request in writing, all to the extent required from time to time to enable such
Holder to sell Registrable Notes without registration under the Securities Act
pursuant to the exemptions provided by Rule 144 and Rule 144A. Upon the request
of any Holder, the Company shall deliver to such Holder a written statement as
to whether it has complied with such information and requirements.
10. UNDERWRITTEN REGISTRATIONS OF REGISTRABLE NOTES
If any of the Registrable Notes covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will manage the offering will be
selected by the Holders of a majority in aggregate principal amount of such
Registrable Notes to be included in such offering; provided, however, that such
investment banker or investment bankers and manager or managers must be
reasonably acceptable to the Company.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes 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.
11. MISCELLANEOUS
(a) Remedies. In the event of a breach by either the Company or
any of the Subsidiary Guarantors of any of their respective
obligations under this Agreement, each Holder, in addition to
being entitled to exercise all rights provided herein, in the
Indenture or, in the case of the Initial Purchaser, in the
Purchase Agreement, or granted by law, including recovery of
damages, will be entitled to specific performance of its
rights under this Agreement. The Company and the Subsidiary
Guarantors agree that monetary damages would not be
26
adequate compensation for any loss incurred by reason of a
breach by either the Company or any of the Subsidiary
Guarantors of any of the provisions of this Agreement and
hereby further agree that, in the event of any action for
specific performance in respect of such breach, the Company
shall (and shall cause each Subsidiary Guarantor to) waive the
defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company and each of the
Subsidiary Guarantors have not entered, as of the date hereof,
and the Company and each of the Subsidiary Guarantors shall
not enter, after the date of this Agreement, into any
agreement with respect to any of its securities that is
inconsistent with the rights granted to the Holders of
Securities in this Agreement or otherwise conflicts with the
provisions hereof. The Company and each of the Subsidiary
Guarantors have not entered and will not enter into any
agreement with respect to any of its securities that will
grant to any Person piggy-back rights with respect to a
Registration Statement.
(c) Adjustments Affecting Registrable Notes. The Company shall
not, directly or indirectly, take any action with respect to
the Registrable Notes as a class that would adversely affect
the ability of the Holders to include such Registrable Notes
in a registration undertaken pursuant to this Agreement.
(d) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be
given, otherwise than with the prior written consent of the
Holders of not less than a majority in aggregate principal
amount of the then outstanding Registrable Notes in
circumstances that would adversely affect any Holders of
Registrable Notes; provided, however, that Section 8 and this
Section 11(d) may not be amended, modified or supplemented
without the prior written consent of each Holder.
Notwithstanding the foregoing, a waiver or consent to depart
from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders of Registrable
Notes whose securities are being tendered pursuant to the
Exchange Offer or sold pursuant to a Notes Registration
Statement and that does not directly or indirectly affect,
impair, limit or compromise the rights of other Holders of
Registrable Notes may be given by Holders of at least a
majority in aggregate principal amount of the Registrable
Notes being tendered or being sold by such Holders pursuant to
such Notes Registration Statement.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery,
registered first-class mail, next-day air courier or
telecopier:
(i) if to a Holder of Securities or to any Participating
Broker-Dealer, at the most current address of such
Holder or Participating Broker-Dealer, as the case
may be, set forth on the records of the registrar of
the Notes, with a copy in like manner to the Initial
Purchaser as follows:
27
Xxxxxxxxx & Company, Inc.
00000 Xxxxx Xxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esq.
with a copy to:
Mayer, Brown, Xxxx & Maw LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
(ii) if to the Initial Purchaser, at the address specified
in Section 11(e)(i);
(iii) if to the Company or any Subsidiary Guarantor, as
follows:
Telex Communications, Inc.
00000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
with a copy to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the United States mail, postage prepaid, if mailed; one
Business Day after being timely delivered to a next-day air courier guaranteeing
overnight delivery; and when receipt is acknowledged by the addressee, if
telecopied.
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.
(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 hereto, including, without limitation and
without the need for an express assignment, subsequent Holders
of Securities.
(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
28
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 PRINCIPLES OF CONFLICT OF LAW. THE COMPANY
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK
STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF
NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITS AND IN RESPECT OF
ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF
THE AFORESAID COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW,
TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. THE COMPANY IRREVOCABLY
CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE COMPANY AT ITS SAID ADDRESS, SUCH
SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY HOLDER TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN
ANY OTHER JURISDICTION.
(j) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no
way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an
alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and
restrictions
29
without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(k) Securities Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of
Securities is required hereunder, Securities held by the
Company or its affiliates (as such term is defined in Rule 405
under the Securities Act) shall not be counted in determining
whether such consent or approval was given by the Holders of
such required percentage.
(l) Third Party Beneficiaries. Holders and Participating
Broker-Dealers are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
(m) Entire Agreement. This Agreement, together with the Purchase
Agreement, the Indenture and the Collateral Agreements, is
intended by the parties as a final and exclusive statement of
the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein and
any and all prior oral or written agreements, representations,
or warranties, contracts, understanding, correspondence,
conversations and memoranda between the Initial Purchaser on
the one hand and the Company and the Subsidiary Guarantors on
the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter
hereof and thereof are merged herein and replaced hereby.
[Remainder of page intentionally left blank.]
30
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the date first written above.
TELEX COMMUNICATIONS, INC.
By: ____________________________________
Name:
Title:
TELEX COMMUNICATIONS
INTERNATIONAL, LTD.
By: ____________________________________
Name:
Title:
31 REGISTRATION RIGHTS AGREEMENT
ACCEPTED AND AGREED TO:
XXXXXXXXX & COMPANY, INC.
By:____________________________________
Name:
Title:
32 REGISTRATION RIGHTS AGREEMENT
