Exhibit 4.8(a)
Exchange and Registration Rights Agreement dated as of November 21, 2001 (this
"Agreement") of Telex Communications, Inc., a Delaware corporation (the
"Company"), for the benefit of the holders of the 13% Senior Subordinated
Discount Notes due 2006 (the "Senior Subordinated Notes") of the Company.
Witnesseth:
Whereas, the Senior Subordinated Notes have been issued by the Company pursuant
to the "Exchange Offer" described in the Amended and Supplemented
Consent Solicitation and Exchange Offering Memorandum dated October 24,
2001 (the "Consent Solicitation and Exchange Offering Memorandum"); and
Whereas, pursuant to the Consent Solicitation and Exchange Offering Memorandum,
the Company has committed to take actions with respect to effecting a
registered exchange offering with respect to the Senior Subordinated
Notes and, if required as provided herein, a shelf-registration with
respect to the Senior Subordinated Notes.
Now, therefore, the Company hereby agrees as follows for the benefit of the
holders of the Senior Subordinated Notes:
1. Definitions.
As used in this Agreement, the following capitalized terms shall have the
following meanings:
"Act": The Securities Act of 1933, as amended.
"Broker-Dealer": Any broker or dealer registered under the Exchange Act.
"Broker-Dealer Transfer Restricted Senior Subordinated Notes": Exchange
Senior Subordinated Notes that are acquired by a Broker-Dealer in the
Exchange Offer in exchange for Senior Subordinated Notes that such
Broker-Dealer acquired for its own account as a result of market-making
activities or other trading activities (other than Senior Subordinated
Notes acquired directly from the Company or any of its affiliates).
"Business Day": Any day except a Saturday, Sunday or other day in the City
of New York, or in the city of the corporate trust office of the Trustee,
on which banks are authorized to close.
"Commission": The United States Securities and Exchange Commission.
"Consummate": An Exchange Offer shall be deemed "Consummated" for purposes
of this Agreement upon the occurrence of (a) the filing and effectiveness
under the Act of the Exchange Offer Registration Statement relating to the
Exchange Senior Subordinated Notes to be issued in the Exchange Offer, (b)
the maintenance of such Registration Statement continuously effective and
the keeping of the Exchange Offer open for a period not less than the
minimum period required pursuant to Section 3(b) hereof, and (c) the
delivery by the Company to the Registrar under the Indenture of Exchange
Senior Subordinated Notes in the same aggregate principal amount as the
aggregate principal amount of Senior Subordinated Notes tendered by Holders
thereof pursuant to the Exchange Offer.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exchange Senior Subordinated Notes": The Company's 13% Senior Subordinated
Discount Notes due 2006 to be issued pursuant to the Indenture (i) in the
Exchange Offer or (ii) upon the request of any Holder of the Senior
Subordinated Notes covered by a Shelf Registration Statement, in exchange
for such Senior Subordinated Notes.
"Exchange Offer": The registration by the Company under the Act of the
Exchange Senior Subordinated Notes pursuant to the Exchange Offer
Registration Statement pursuant to which the Company shall offer the
Holders of all outstanding Transfer Restricted Senior Subordinated Notes
the opportunity to exchange all such outstanding Transfer Restricted Senior
Subordinated Notes for Exchange Senior Subordinated Notes in an aggregate
principal amount equal to the aggregate principal amount of the Transfer
Restricted Senior Subordinated Notes tendered in such exchange offer by
such Holders.
"Exchange Offer Registration Statement": The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
"Holders": As defined in Section 2 hereof.
"Indemnified Holder": As defined in Section 8(a) hereof.
"Indenture": The Indenture dated the date hereof among the Company and the
Trustee pursuant to which the Senior Subordinated Notes are to be issued,
as such Indenture is amended or supplemented from time to time in
accordance with the terms thereof.
"NASD": National Association of Securities Dealers, Inc.
"Permitted Holders": As such term is used and defined in Waiver, Amendment
No. 5, Agreement, and Consent dated as of the date hereof with respect to
the Credit Agreement dated as of May 6, 1997, as amended and in effect as
of the date hereof, among the Company, JPMorgan Chase Bank (f/k/a The Chase
Manhattan Bank), as Administrative Agent, and the "Lenders" and
"Documentation Agent" described therein.
"Person": An individual, partnership, corporation, trust, unincorporated
organization, or a government or agency or political subdivision thereof.
"Prospectus": The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated
by reference into such Prospectus.
"Registrable Equity Securities": The Series B Preferred Stock and the
Warrants to purchase Common Stock of the Company issued pursuant to the
"Exchange Offer" under the Consent Solicitation and Exchange Offering
Memorandum (including any shares of Common Stock of the Company issuable
upon any conversion of the Series B Preferred Stock or exercise of the
Warrants).
"Registration Statement": Any registration statement of the Company
relating to (a) an offering of Exchange Senior Subordinated Notes pursuant
to an Exchange Offer or (b) the registration for resale of Transfer
Restricted Senior Subordinated Notes pursuant to the Shelf Registration
Statement, in each case, (i) which is filed pursuant to the provisions of
this Agreement and (ii) including the
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Prospectus included therein, all amendments and supplements thereto
(including post-effective amendments) and all exhibits and material
incorporated by reference therein.
"Restricted Broker-Dealer": Any Broker-Dealer which holds Broker-Dealer
Transfer Restricted Senior Subordinated Notes.
"Series B Preferred Stock": The Series B Preferred Stock, par value $0.01
per share, of the Company.
"Senior Subordinated Notes": The Senior Subordinated Notes and the Exchange
Senior Subordinated Notes.
"Shelf Registration Statement": As defined in Section 4 hereof.
"TIA": The Trust Indenture Act of 1939 as in effect on the date of the
Indenture.
"Transfer Restricted Senior Subordinated Notes": Each Senior Subordinated
Note, until the earliest to occur of (a) the date on which such Senior
Subordinated Note is exchanged in the Exchange Offer and entitled to be
resold to the public by the Holder thereof without complying with the
prospectus delivery requirements of the Act, (b) the date on which such
Senior Subordinated Note has been disposed of in accordance with a Shelf
Registration Statement, (c) the date on which such Senior Subordinated Note
is disposed of by a Broker-Dealer pursuant to the "Plan of Distribution"
contemplated by the Exchange Offer Registration Statement (including
delivery of the Prospectus contained therein) or (d) the date on which such
Senior Subordinated Note is distributed to the public pursuant to Rule 144
under the Act.
"Trustee": The trustee under the Indenture.
"Underwritten Registration" or "Underwritten Offering": A registration in
which securities of the Company are sold to an underwriter for reoffering
to the public.
"Warrants": Warrants issued by the Company as of the date hereof entitling
the holders thereof to purchase shares of the Series B Preferred Stock or
the Common Stock, par value $0.01 per share, of the Company upon conversion
of the Series B Preferred Stock.
2. Holders.
A Person is deemed to be a holder of Transfer Restricted Senior
Subordinated Notes (each, a "Holder") whenever such Person owns Transfer
Restricted Senior Subordinated Notes.
3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permitted by applicable federal
law (after the procedures set forth in Section 6(a)(i) below have been
complied with), the Company shall: (i) cause to be filed with the
Commission as soon as practicable after the date hereof, but in no
event later than 160 days after the date hereof, the Exchange Offer
Registration Statement; (ii) use its best efforts to cause such
Exchange Offer Registration Statement to become effective at the
earliest possible time, but in no event later than 180 days after the
date hereof; (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Exchange Offer Registration Statement
as may be necessary in order to cause such Exchange Offer Registration
Statement to become effective, (B) file, if applicable, a
post-effective amendment to such Exchange Offer Registration Statement
pursuant to Rule 430A under the Act, and (C) cause all necessary
filings, if any, in
3
connection with the registration and qualification of the Exchange
Senior Subordinated Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange
Offer; and (iv) upon the effectiveness of such Exchange Offer
Registration Statement, commence and Consummate the Exchange Offer. The
Exchange Offer shall be on the appropriate form permitting registration
of the Exchange Senior Subordinated Notes to be offered in exchange for
the Senior Subordinated Notes that are Transfer Restricted Senior
Subordinated Notes and to permit sales of Broker-Dealer Transfer
Restricted Senior Subordinated Notes by Restricted Broker-Dealers as
contemplated by Section 3(c) below.
(b) The Company shall use its best efforts to cause the Exchange Offer
Registration Statement to be effective continuously, and shall keep the
Exchange Offer open, for a period of not less than the minimum period
required under applicable federal and state securities laws to
Consummate the Exchange Offer; provided, however, that in no event
shall such period be less than 20 Business Days. The Company shall
cause the Exchange Offer to comply with all applicable federal and
state securities laws. No securities other than the Senior Subordinated
Notes shall be included in the Exchange Offer Registration Statement;
except the Company shall be permitted to combine with the Exchange
Offer Registration Statement any shelf registration effected by the
Company with respect to the Registrable Equity Securities. The Company
shall use its best efforts to cause the Exchange Offer to be
Consummated on the earliest practicable date after the Exchange Offer
Registration Statement has become effective, but in no event later than
25 Business Days thereafter.
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and
indicate therein that any Restricted Broker-Dealer who holds Senior
Subordinated Notes that are Transfer Restricted Senior Subordinated
Notes, and that were acquired for the account of such Broker-Dealer as
a result of market-making activities or other trading activities, may
exchange such Senior Subordinated Notes (other than Transfer Restricted
Senior Subordinated Notes acquired directly from the Company) pursuant
to the Exchange Offer; however, such Broker-Dealer may be deemed to be
an "underwriter" within the meaning of the Act and must, therefore,
deliver a prospectus meeting the requirements of the Act in connection
with its initial sale of each Exchange Senior Subordinated Note
received by such Broker-Dealer in exchange for Senior Subordinated
Notes in the Exchange Offer, which prospectus delivery requirement may
be satisfied by the delivery by such Broker-Dealer of the Prospectus
contained in the Exchange Offer Registration Statement. Such "Plan of
Distribution" section shall also contain all other information with
respect to such sales of Broker-Dealer Transfer Restricted Senior
Subordinated Notes by Restricted Broker-Dealers that the Commission may
require in order to permit such sales pursuant thereto, but such "Plan
of Distribution" shall not name any such Broker-Dealer or disclose the
amount of Senior Subordinated Notes held by any such Broker-Dealer
except to the extent required by the Commission as a result of a change
in policy after the date of this Agreement.
(d) The Company shall use its best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended
as required by the provisions of Section 6(c) below to the extent
necessary to ensure that it is available for sales of Broker-Dealer
Transfer Restricted Senior Subordinated Notes by Restricted
Broker-Dealers, and to ensure that such Registration Statement conforms
with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time,
for a period of 180 days from the date on which the Exchange Offer is
Consummated.
(e) The Company shall promptly provide sufficient copies of the latest
version of such Prospectus to such Restricted Broker-Dealers promptly
upon request, and in no event later than two days after
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such request, at any time during such one- year period in order to
facilitate such sales.
4. Shelf Registration.
(a) Shelf Registration Generally. If (i) the Company is not required to
file an Exchange Offer Registration Statement with respect to the
Exchange Senior Subordinated Notes because the Exchange Offer is not
permitted by applicable law (after the procedures set forth in Section
6(a)(i) below have been complied with) or (ii) if any Holder of
Transfer Restricted Senior Subordinated Notes shall notify the Company
within 20 Business Days following the Consummation of the Exchange
Offer that (A) such Holder is prohibited by law or Commission policy
from participating in the Exchange Offer or (B) such Holder may not
resell the Exchange Senior Subordinated Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and the
Prospectus contained in the Exchange Offer Registration Statement is
not appropriate or available for such resales by such Holder or (C)
such Holder is a Broker-Dealer and holds Senior Subordinated Notes
acquired directly from the Company or one of its affiliates, then the
Company shall (x) cause to be filed on or prior to the earliest of (1)
60 days after the date on which the Company is notified by the
Commission or otherwise determines that it is not permitted or required
to file the Exchange Offer Registration Statement pursuant to clause
(i) above and (2) 60 days after the date on which the Company receives
the notice specified in clause (ii) above, a shelf registration
statement pursuant to Rule 415 under the Act, (which may be an
amendment to the Exchange Offer Registration Statement (in either
event, the "Shelf Registration Statement")), relating to all Transfer
Restricted Senior Subordinated Notes the Holders of which shall have
provided the information required pursuant to Section 4 hereof, and (y)
use its best efforts to cause such Shelf Registration Statement to
become effective at the earliest possible time, but in no event later
than 180 days after the date hereof. If, after the Company has filed an
Exchange Offer Registration Statement which satisfies the requirements
of Section 3(a) above, the Company is required to file and make
effective a Shelf Registration Statement solely because the Exchange
Offer shall not be permitted under applicable federal law, then the
filing of the Exchange Offer Registration Statement shall be deemed to
satisfy the requirements of clause (x) above. Such an event shall have
no effect on the requirements of clause (y) above. The Company shall
use its best efforts to keep any Shelf Registration Statement pursuant
to this Section 4 continuously effective, supplemented and amended as
required by and subject to the provisions of Sections 6(b) and (c)
hereof to the extent necessary to ensure that it is available for sales
of Transfer Restricted Senior Subordinated Notes by the Holders thereof
entitled to the benefit of this Section 4, and to ensure that it
conforms with the requirements of this Agreement, the Act and the
policies, rules and regulations of the Commission as announced from
time to time, for a period of at least two years (as extended pursuant
to Section 6(c)(i)) following the date on which such Shelf Registration
Statement first becomes effective under the Act (except as otherwise
provided in Section 4(b) hereof) or such shorter period that will
terminate when all Transfer Restricted Senior Subordinated Notes
covered by the Shelf Registration Statement have been sold pursuant
thereto. Any Shelf Registration Statement pursuant to this Section 4
may be combined with any "Shelf Registration Statement" under the
Registration Rights Agreements dated as of the date hereof executed by
the Company for the benefit of the holders of its Series B Preferred
Stock and Warrants. The obligation of the Company to file any
post-effective amendment to a previously filed Shelf Registration
Statement or Exchange Offer Registration Statement shall be suspended
if the Company shall have reasonably determined that the filing thereof
would require the disclosure by the Company of a pending transaction
which is material to the Company, but the Company shall file such
post-effective amendment to a previously filed Shelf Registration
Statement or Exchange Offer Registration Statement promptly following
either the termination or abandonment by the Company of the transaction
or following the public announcement of the transaction.
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(b) In addition to the provisions of Section 4(a) hereof, and solely with
respect to Permitted Holders, the Company shall make inquiry of
Permitted Holders at least 30 days, but not more than 45 days, prior to
each fiscal quarter commencing after the effectiveness of the Exchange
Registration Statement or any previously filed Shelf Registration
Statement as to whether Permitted Holders intend to effect sales of
Senior Subordinated Notes during such fiscal quarter. If any Permitted
Holder advises the Company prior to such fiscal quarter that the
Permitted Holder intends to effect sales of Senior Subordinated Notes
during such fiscal quarter, and if the Company determines that the
Permitted Holder is an "affiliate" (as defined under the rules and
regulations of the Commission) of the Company or if the Permitted
Holder determines, after consultation with counsel and with the
Company, that it is an affiliate of the Company (any such Permitted
Holder being herein referred to as an "Affiliate Holder"), and it is
determined also that such Affiliate Holder may not effect sales of
Senior Subordinated Notes except pursuant to an effective registration
statement under the Act, then the Company shall (i) promptly file a
shelf registration statement pursuant to Rule 415 under the Act (which
shall be deemed a "Shelf Registration Statement" for purposes of this
Agreement), unless a previously filed Shelf Registration Statement or
Exchange Offer Registration Statement is effective and available for
use by the Affiliate Holder to effect sales relating to the Senior
Subordinated Notes of such Affiliate Holder, and (ii) use its best
efforts to cause such Shelf Registration Statement, or a post-effective
amendment to a previously filed Shelf Registration Statement or
Exchange Offer Registration Statement, to become effective at the
earliest practicable time to permit the Affiliate Holder to effect
sales of the Senior Subordinated Notes. However, the obligation of the
Company to file any such Shelf Registration Statement or post-effective
amendment to a previously filed Shelf Registration Statement or
Exchange Offer Registration Statement shall be suspended if the Company
shall have reasonably determined that the filing thereof would require
the disclosure by the Company of a pending transaction which is
material to the Company, but the Company shall file such Shelf
Registration Statement or post-effective amendment to a previously
filed Shelf Registration Statement or Exchange Offer Registration
Statement promptly following either the termination or abandonment by
the Company of the transaction or following the public announcement of
the transaction.
(c) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Senior
Subordinated Notes may include any of its Transfer Restricted Senior
Subordinated Notes in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Company in
writing, within 20 days after receipt of a request therefor, such
information specified in Item 507 of Regulation S-K under the Act for
use in connection with any Shelf Registration Statement or Prospectus
or preliminary Prospectus included therein. Each Holder as to which any
Shelf Registration Statement is being effected agrees to furnish
promptly to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by
such Holder not materially misleading.
5. [omitted]
6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with the Exchange
Offer, the Company shall comply with all applicable provisions of
Section 6(c) below, shall use its best efforts to effect such exchange
and to permit the sale of Broker-Dealer Transfer Restricted Senior
Subordinated Notes being sold in accordance with the intended method or
methods of distribution thereof, and shall comply with all of the
following provisions:
6
(i) If, following the date hereof there has been published a change
in Commission policy with respect to exchange offers such as the
Exchange Offer, such that in the reasonable opinion of counsel to
the Company there is a substantial question as to whether the
Exchange Offer is permitted by applicable federal law or
Commission policy, the Company hereby agrees to seek a no-action
letter or other favorable decision from the Commission allowing
the Company to Consummate an Exchange Offer for Senior
Subordinated Notes. The Company hereby agrees to pursue the
issuance of such a decision to the Commission staff level but
shall not be required to take commercially unreasonable action to
effect a change of Commission policy. In connection with the
foregoing, the Company hereby agrees, however, to take all such
other actions as are requested by the Commission or otherwise
required in connection with the issuance of such decision,
including without limitation (A) participating in telephonic
conferences with the Commission, (B) delivering to the Commission
staff an analysis prepared by counsel to the Company setting
forth the legal bases, if any, upon which such counsel has
concluded that such an Exchange Offer should be permitted and (C)
diligently pursuing a resolution (which need not be favorable) by
the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Senior Subordinated Notes shall furnish, upon the
request of the Company, prior to the Consummation of the Exchange
Offer, a written representation to the Company (which may be
contained in the letter of transmittal contemplated by the
Exchange Offer Registration Statement) to the effect that (A) it
is not an affiliate of the Company, (B) it is not engaged in, and
does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution
of the Exchange Senior Subordinated Notes to be issued in the
Exchange Offer and (C) it is acquiring the Exchange Senior
Subordinated Notes in its ordinary course of business. Each
Holder hereby acknowledges and agrees that any Broker-Dealer and
any such Holder using the Exchange Offer to participate in a
distribution of the securities to be acquired in the Exchange
Offer (1) could not under Commission policy as in effect on the
date of this Agreement rely on the position of the Commission
enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5,
1991) and Exxon Capital Holdings Corporation (available May 13,
1988), as interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993, and similar no- action letters
(including, if applicable, any no-action letter obtained pursuant
to clause (i) above), and (2) must comply with the registration
and prospectus delivery requirements of the Act in connection
with a secondary resale transaction and that such a secondary
resale transaction must be covered by an effective registration
statement containing the selling security holder information
required by Item 507 or Item 508, as applicable, of Regulation
S-K if the resales are of Exchange Senior Subordinated Notes
obtained by such Holder in exchange for Senior Subordinated Notes
acquired by such Holder directly from the Company or an affiliate
thereof.
(iii) To the extent required by the Commission, prior to effectiveness
of the Exchange Offer Registration Statement, the Company shall
provide a supplemental letter to the Commission (A) stating that
the Company is registering the Exchange Offer in reliance on the
position of the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988), Xxxxxx Xxxxxxx and Co.,
Inc. (available June 5, 1991) and, if applicable, any no-action
letter obtained pursuant to clause (i) above, (B) including a
representation that the Company has not entered into any
arrangement or understanding with any Person to distribute the
Exchange Senior Subordinated Notes to be received in the Exchange
Offer and that, to the best of the Company's information and
belief, each Holder of Transfer Restricted Senior
7
Subordinated Notes participating in the Exchange Offer is
acquiring the Exchange Senior Subordinated Notes in its ordinary
course of business and has no arrangement or understanding with
any Person to participate in the distribution of the Exchange
Senior Subordinated Notes received in the Exchange Offer, and (C)
any other undertaking or representation required by the
Commission as set forth in any no-action letter obtained pursuant
to clause (i) above.
(b) Shelf Registration Statement. In connection with the Shelf Registration
Statement the Company shall comply with all the provisions of Section
6(c) below and shall use its best efforts to effect such registration
to permit the sale of the Transfer Restricted Senior Subordinated Notes
being sold in accordance with the intended method or methods of
distribution thereof (as indicated in the information furnished to the
Company pursuant to Section 4 hereof), and pursuant thereto the Company
will prepare and file with the Commission a Registration Statement
relating to the registration on any appropriate form under the Act,
which form shall be available for the sale of the Transfer Restricted
Senior Subordinated Notes in accordance with the intended method or
methods of distribution thereof within the time periods and otherwise
in accordance with the provisions hereof.
(c) General Provisions. In connection with any Registration Statement and
any related Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Senior Subordinated Notes (including
without limitation any Exchange Offer Registration Statement and the
related Prospectus, to the extent that the same are required to be
available to permit sales of Broker-Dealer Transfer Restricted Senior
Subordinated Notes by Restricted Broker-Dealers), the Company shall:
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial
statements for the period specified in Section 3 or Section 4 of
this Agreement, as applicable. Upon the occurrence of any event
that would cause any such Registration Statement or the
Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable
for resale of Transfer Restricted Senior Subordinated Notes
during the period required by this Agreement, the Company shall
file promptly an appropriate amendment to such Registration
Statement, (1) in the case of clause (A), correcting any such
misstatement or omission, and (2) in the case of either clause
(A) or (B), use its best efforts to cause such amendment to be
declared effective and such Registration Statement and the
related Prospectus to become usable for their intended purpose(s)
as soon as practicable thereafter. Notwithstanding the foregoing,
if (A) the Board of Directors of the Company determines in good
faith that it is in the best interests of the Company not to
disclose the existence of or facts surrounding any proposed or
pending material corporate transaction involving the Company or
its subsidiaries and (B) the Company notifies the Holders within
two Business Days after the Board of Directors makes such
determination, the Company may allow the Shelf Registration
Statement to fail to be effective and usable as a result of such
nondisclosure for up to 60 days during the two-year period of
effectiveness required by Section 4 hereof, but in no event for
any period in excess of 30 consecutive days; provided, however,
that the two-year period referred to in Section 4 hereof during
which the Shelf Registration Statement is required to be
effective and usable shall be extended by the number of days
during which such registration statement was not effective or
usable pursuant to the foregoing provisions;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement
8
effective for the applicable period set forth in Section 3 or
Section 4 hereof, or such shorter period as will terminate when
all Transfer Restricted Senior Subordinated Notes or Exchange
Senior Subordinated Notes of any Affiliate Holder covered by such
Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act, and
to comply fully with Rules 424 and 430A, as applicable, under the
Act in a timely manner; and comply with the provisions of the Act
with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance
with the intended method or methods of distribution by the
sellers thereof set forth in such Registration Statement or
supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders promptly
and, if requested by such Persons, confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto,
when the same has become effective, (B) of any request by the
Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional
information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by any
state securities commission of the qualification of the Transfer
Restricted Senior Subordinated Notes for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the
happening of any event that makes any statement of a material
fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto or any document incorporated by
reference therein untrue, or that requires the making of any
additions to or changes in the Registration Statement in order to
make the statements therein not misleading, or that requires the
making of any additions to or changes in the Prospectus in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If at any time the
Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue
an order suspending the qualification or exemption from
qualification of the Transfer Restricted Senior Subordinated
Notes under state securities or Blue Sky laws, the Company shall
use its best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time;
(iv) in the case of a Shelf Registration Statement, use its best
efforts to furnish to the Holder, each selling Holder named in
any Registration Statement or Prospectus and each of the
underwriter(s) in connection with such sale, if any, before
filing with the Commission, copies of any Registration Statement
or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus
(including all documents incorporated by reference after the
initial filing of such Registration Statement), prior to filing
and reasonably respond to comments received from such persons,
and make the Company's representatives available for discussion
of such documents and other customary due diligence matters;
(v) [omitted]
(vi) in the case of a Shelf Registration Statement, if requested by
any selling Holders or the underwriter(s) in connection with such
sale, if any, promptly include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment
if necessary, such information as such selling Holders and
underwriter(s), if any, may
9
reasonably request to have included therein, including, without
limitation, information relating to the "Plan of Distribution" of
the Transfer Restricted Senior Subordinated Notes, information
with respect to the principal amount of Transfer Restricted
Senior Subordinated Note being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of the
offering of the Transfer Restricted Senior Subordinated Note to
be sold in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as
practicable after he Company is notified of the matters
reasonably requested to be included in such Prospectus supplement
or post-effective amendment;
(vii) in the case of a Shelf Registration Statement, furnish to each
selling Holder and each of the underwriter(s) in connection with
such sale, if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and
of each amendment thereto, including all documents incorporated
by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(viii)deliver to each selling Holder of Transfer Restricted Senior
Subordinated Notes and each of the underwriter(s), if any,
without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto
as such Persons reasonably may request; the Company hereby
consents to the use (in accordance with law) of the Prospectus
and any amendment or supplement thereto by each of the selling
Holders and each of the underwriter(s), if any, in connection
with the offering and the sale of the Transfer Restricted Senior
Subordinated Notes covered by the Prospectus or any amendment or
supplement thereto;
(ix) enter into such customary agreements and make such
representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Senior Subordinated Notes
pursuant to any Registration Statement contemplated by this
Agreement as may be reasonably requested by any Holder of
Transfer Restricted Senior Subordinated Notes or underwriter in
connection with any sale or resale pursuant to any Registration
Statement contemplated by this Agreement, and in such connection,
whether or not an underwriting agreement is entered into and
whether or not the registration is an Underwritten Registration,
the Company shall:
(A) furnish (or in the case of paragraphs (2) and (3), use its
best efforts to furnish) to each selling Holder and each
underwriter, if any, upon the effectiveness of the Shelf
Registration Statement and to each Restricted Broker-Dealer
upon Consummation of the Exchange Offer:
(1) [omitted];
(2) an opinion, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the
Shelf Registration Statement, as the case may be, of
counsel for the Company, covering matters customarily
covered in opinions requested in Underwritten Offerings
and dated the date of effectiveness of the Shelf
Registration Statement or the date of Consummation of
the Exchange Offer, as the case may be; and
(3) a customary comfort letter, dated as of the date of
effectiveness of the Shelf Registration Statement or
the date of Consummation of the Exchange Offer, as
10
the case may be, from the Company's independent
accountants, in the customary form and covering matters
of the type customarily covered in comfort letters to
underwriters in connection with Underwritten Offerings,
without exception;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, in connection with any sale
or resale pursuant to any Shelf Registration Statement the
indemnification provisions and procedures of Section 8 hereof
with respect to all parties to be indemnified pursuant to
said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by the selling Holders or the
underwriter(s), if any, to evidence compliance with clause
(A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Company pursuant to this clause (ix).
The above shall be done at each closing under such underwriting
or similar agreement, as and to the extent required thereunder,
and if at any time the representations and warranties of the
Company contemplated in clause (A)(1) above cease to be true and
correct, the Company shall so advise the underwriter(s), if any,
and selling Holders promptly and if requested by such Persons,
shall confirm such advice in writing;
(x) prior to any public offering of Transfer Restricted Senior
Subordinated Notes, cooperate with the selling Holders, the
underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the
Transfer Restricted Senior Subordinated Notes under the
securities or Blue Sky laws of such jurisdictions as the selling
Holders or underwriter(s), if any, may request and do any and all
other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted
Senior Subordinated Note covered by the applicable Registration
Statement; provided, however, that the Company shall not be
required to register or qualify as a foreign corporation where it
is not now so qualified or to take any action that would subject
it to the service of process in suits or to taxation, other than
as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject;
(xi) issue, upon the request of any Holder of Senior Subordinated
Notes covered by any Shelf Registration Statement contemplated by
this Agreement, Exchange Senior Subordinated Notes, having an
aggregate principal amount equal to the aggregate principal
amount of Senior Subordinated Notes surrendered to the Company by
such Holder in exchange therefor or being sold by such Holder;
such Exchange Senior Subordinated Notes to be registered in the
name of such Holder or in the name of the holder(s) of such
Senior Subordinated Notes, as the case may be; in return, the
Senior Subordinated Notes held by such Holder shall be
surrendered to the Company for cancellation;
(xii) in connection with any sale of Transfer Restricted Senior
Subordinated Notes that will result in such securities no longer
being Transfer Restricted Senior Subordinated Note, cooperate
with the selling Holders and the underwriter(s), if any, to
facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Senior Subordinated Notes to be
sold and not bearing any restrictive legends; and to register
such Transfer Restricted Senior Subordinated Notes in such
denominations and such names as the Holders or the
underwriter(s), if any, may request at least two Business Days
prior to such sale of Transfer Restricted Senior Subordinated
Notes;
11
(xiii)use its best efforts to cause the disposition of the Transfer
Restricted Senior Subordinated Notes covered by the Registration
Statement to be registered with or approved by such other United
States governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof or the underwriter(s), if
any, to consummate the disposition of such Transfer Restricted
Senior Subordinated Notes, subject to the proviso contained in
clause (x) above;
(xiv) subject to Section 6(c)(i), if any fact or event contemplated by
Section 6(c)(iii)(D) above shall exist or have occurred, prepare
a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that,
as thereafter delivered to the holders of Transfer Restricted
Senior Subordinated Notes, the Prospectus will not contain an
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(xv) provide a CUSIP number for all Transfer Restricted Senior
Subordinated Notes not later than the effective date of a
Registration Statement covering such Transfer Restricted Senior
Subordinated Notes and provide the Trustee under the Indenture
with printed certificates for Transfer Restricted Senior
Subordinated Notes which are in a form eligible for deposit with
the Depository Trust Company;
(xvi) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by
any underwriter that is required to be retained in accordance
with the rules and regulations of the NASD, and use its best
efforts to cause such Registration Statement to become effective
and approved by such governmental agencies or authorities as may
be necessary to enable the Holders selling Transfer Restricted
Senior Subordinated Note to consummate the disposition of such
Transfer Restricted Senior Subordinated Note;
(xvii)otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally
available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which
need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such
term is defined in paragraph (c) of Rule 158 under the Act);
(xviii) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith,
cooperate with the Trustee and the Holders of Senior Subordinated
Notes to effect such changes to the Indenture as may be required
for such Indenture to be so qualified in accordance with the
terms of the TIA; and execute and use its best efforts to cause
the Trustee to execute, all documents that may be required to
effect such changes and all other forms and documents required to
be filed with the Commission to enable such Indenture to be so
qualified in a timely manner; and
(xix) provide promptly to each Holder upon request each document filed
with the Commission pursuant to the requirements of Section 13 or
Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Senior Subordinated Note that, upon receipt of the
notice referred to in Section 6(c)(i) or any notice from
12
the Company of the existence of any fact of the kind described in
Section 6(c)(iii)(D) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Senior Subordinated Notes pursuant
to the applicable Registration Statement until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(xiv) hereof, or until it is advised in writing by the
Company that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus (the "Advice"). If so directed by the
Company, each Holder will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer
Restricted Senior Subordinated Notes that was current at the time of
receipt of either such notice. In the event the Company shall give any
such notice, the time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or Section 4 hereof, as
applicable, shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to
Section 6(c)(i) or Section 6(c)(iii)(D) hereof to and including the
date when each selling Holder covered by such Registration Statement
shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(xiv) hereof or shall have
received the Advice.
7. Registration Expenses.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company, regardless of whether
a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses
(including filings made with the NASD and counsel fees in connection
therewith); (ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws; (iii) all printing
expenses of printing (including printing certificates for the Exchange
Senior Subordinated Notes and printing of Prospectuses); (iv) all fees
and disbursements of counsel for the Company and, in accordance with
Section 7(b) below, the Holders of Transfer Restricted Senior
Subordinated Notes; and (v) all fees and disbursements of independent
certified public accountants of the Company (including the expenses of
any special audit and comfort letters required by or incident to such
performance). The Company will, in any event, bear its internal
expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the
expenses of any annual audit and the fees and expenses of any Person,
including special experts, retained by the Company.
(b) In connection with any Shelf Registration Statement required by this
Agreement, the Company will reimburse the Holders of Transfer
Restricted Senior Subordinated Notes the distribution of which is being
registered pursuant to the Shelf Registration Statement for the
reasonable fees and disbursements of not more than one counsel chosen
by the Holders of a majority of the principal amount of such Transfer
Restricted Senior Subordinated Notes, which counsel shall be
satisfactory to the Company in its sole discretion.
8. Indemnification.
(a) The Company agrees to indemnify and hold harmless (i) each Holder and
(ii) each person, if any, who controls (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) any Holder (any of the
persons referred to in this clause (ii) being hereinafter referred to
as a "controlling person") and (iii) the respective officers,
directors, partners, employees, representatives and agents of any
Holder or any controlling person (any person referred to in clause (i),
(ii) or (iii) may hereinafter be referred to as an "Indemnified
Holder"), from and against any and all losses, claims, damages,
liabilities and judgments caused by any untrue statement or alleged
untrue statement of a material fact contained in any Registration
Statement or Prospectus
13
(or any amendment or supplement thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages, liabilities or judgments (i)
are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any of the
Holders furnished in writing to the Company by any of the Holders
expressly for use therein, (ii) with respect to the preliminary
prospectus, result from the fact that the Holder sold Transfer
Restricted Senior Subordinated Notes 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 prospectus, as amended or supplemented, if the Company
shall have previously furnished copies thereof to the Holder in
accordance with this Agreement and the prospectus, as amended or
supplemented, would have corrected such untrue statement or omission or
(iii) are a result of the use by the Indemnified Holder of any
prospectus, when, upon receipt of a notice from the Company of the
existence of any fact of the kind described in Section 6(c)(iii)(D)
hereof contemplated by the last paragraph of Section 6 hereof, the
Indemnified Holder was not permitted to do so.
In case any action or proceeding shall be brought against any of the
Indemnified Holders with respect to which indemnity may be sought
against the Company, such Indemnified Holder (or the Indemnified Holder
controlled by such controlling person) shall promptly notify the
Company in writing (provided, that the failure to give such notice
shall not relieve the Company of its obligations pursuant to this
Agreement). Such Indemnified Holder shall have the right to employ its
own counsel in any such action but the fees and expenses of such
counsel shall be at the expense of the Indemnified Holder or such
controlling person unless (i) the employment of such counsel shall have
been specifically authorized in writing by the Company, (ii) the
Company shall have failed to assume the defense and employ counsel or
(iii) the named parties to any such action (including any impleaded
parties) include both the Indemnified Holder or such controlling person
and the Company and the Indemnified Holder or such controlling person
shall have been advised in writing by such counsel that there may be
one or more legal defenses available to it which are different from or
additional to those available to the Company (in which case the Company
shall not have the right to assume the defense of such action on behalf
of the Indemnified Holder or such controlling person), it being
understood, however, that the Company shall not, in connection with any
one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) at any time for such
Indemnified Holders, which firm shall be designated by the Holders and
be reasonably satisfactory to the Company. The Company shall not be
liable for any settlement of any such action or proceeding effected
without the Company's prior written consent, which consent shall not be
withheld unreasonably, but if settled with the Company's written
consent, and the Company agrees to indemnify and hold harmless any
Indemnified Holder from and against any loss or liability by reason of
such settlement. The Company shall not, without the prior written
consent of each Indemnified Holder effect any settlement of any pending
or threatened proceeding in respect of which any Indemnified Holder is
or could have been a party and indemnity could have been sought
hereunder by such Indemnified Holder, unless such settlement includes
an unconditional release of such Indemnified Holder from all liability
on claims that are the subject matter of such proceeding.
(b) Each Holder of Transfer Restricted Senior Subordinated Notes agrees,
severally and not jointly, to indemnify and hold harmless the Company,
and its directors, officers, and any person controlling the Company
(within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the
Company to each of the
14
Indemnified Holders, but only with respect to information relating to
such Holder furnished in writing by such Holder expressly for use in
any Registration Statement. In case any action or proceeding shall be
brought against the Company or its directors or officers or any such
controlling person in respect of which indemnity may be sought against
a Holder of Transfer Restricted Senior Subordinated Notes, such Holder
shall have the rights and duties given the Company and the Company or
its directors or officers or such controlling person shall have the
rights and duties given to each Holder by the preceding paragraph. In
no event shall the liability of any selling Holder hereunder be greater
in amount than the dollar amount of the proceeds received by such
Holder upon the sale of the Transfer Restricted Senior Subordinated
Notes giving rise to such indemnification obligation.
(c) If the indemnification provided for in this Section 8 is unavailable to
an indemnified party under Section 8(a) or Section 8(b) hereof (other
than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities or judgments referred to
therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Holders on the other hand from their sale of
Transfer Restricted Senior Subordinated Notes or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect the relative fault of the
Company on the one hand and of the Indemnified Holder on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative fault of the Company on
the one hand and of the Indemnified Holder on the other shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Company or by the
Indemnified Holder and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and judgments referred to above
shall be deemed to include, subject to the limitations set forth in the
second paragraph of Section 8(a), any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or
defending any action or claim.
The Company and each Holder of Transfer Restricted Senior Subordinated
Notes agree that it would not be just and equitable if contribution
pursuant to this Section 8(c) were determined by pro rata allocation
(even if the Holders were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Xxxxxxx 0, xxxx of the Holders
(and its related Indemnified Holders) shall be required to contribute,
in the aggregate, any amount in excess of the amount by which the
dollar amount of proceeds received by such Holder upon the sale of
Transfer Restricted Senior Subordinated Notes exceeds the amount of any
damages which 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 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to
this Section 8(c) are several in proportion to the respective principal
amount of Senior Subordinated Notes held by each of the Holders
hereunder and not joint.
15
9. Rule 144.
The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Senior Subordinated Notes remain outstanding and during any
period in which the Company is subject to Section 13 or 15(d) of the
Exchange Act, to make all filings required thereby in a timely manner in
order to permit resales of such Transfer Restricted Securities pursuant to
Rule 144.
10. Underwritten Registrations
No Holder may participate in any Underwritten Registration hereunder unless
such Holder (a) agrees to sell such Holder's Transfer Restricted Senior
Subordinated Notes on the basis provided in customary underwriting
arrangements entered into in connection therewith and (b) completes and
executes all reasonable questionnaires, powers of attorney, lock-up letters
and other documents required under the terms of such underwriting
arrangements. The Company shall have no obligation to effect any
Registration Statement as an Underwritten Registration.
11. Selection of Underwriters.
For any Underwritten Offering, the investment banker or investment bankers
and manager or managers for any Underwritten Offering that will administer
such offering will be selected by the Company. Such investment bankers and
managers are referred to herein as the "underwriters."
12. Miscellaneous.
(a) Remedies. Each Holder, in addition to being entitled to exercise all
rights provided herein, in the Indenture or granted by law, including
recovery of damages, will be entitled to specific performance of its
rights under this Agreement. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and hereby agrees to
waive the defense in any action for specific performance that a remedy
at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after the date
of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders
in this Agreement or otherwise conflicts with the provisions hereof.
The Company has not previously entered into any agreement granting any
registration rights with respect to its securities to any Person, other
than those rights existing by virtue of the Registration Rights
Agreements dated as of the date hereof executed by the Company for the
benefit of the holders of its Series B Preferred Stock and the
Warrants. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the
holders of the Company's securities under any agreement in effect on
the date hereof.
(c) Adjustments Affecting the Senior Subordinated Notes. The Company will
not take any action, or voluntarily permit any change to occur, with
respect to the Senior Subordinated Notes that would materially and
adversely affect the ability of the Holders to Consummate any Exchange
Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless the
Company has obtained the written consent of the Holders of a majority
of the outstanding principal amount of Transfer Restricted Senior
Subordinated Notes. Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively
16
to the rights of Holders whose securities are being tendered pursuant
to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered
pursuant to such Exchange Offer may be given by the Holders of a
majority of the outstanding principal amount of Transfer Restricted
Senior Subordinated Notes subject to such Exchange Offer.
(e) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier,
or air courier guaranteeing overnight delivery:
If to a Holder:
--------------
At the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar under the Indenture.
If to the Company: With a copy to:
----------------- --------------
Telex Communications, Inc. Dechert
00000 Xxxxxxxx Xxxxxx 00 Xxxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx Attention: Xxxxxx X. Xxxxxx
Vice President and
Chief Financial Officer
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if
mailed; when receipt acknowledged, if telecopied; and on the next
business day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at
the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of the Company and the
initial Holders of Transfer Restricted Senior Subordinated Notes;
provided, however, that this Agreement shall not inure to the benefit
of or be binding upon a successor or assign of a Holder unless and to
the extent such successor or assign acquired Transfer Restricted Senior
Subordinated Notes directly from such Holder at a time when such Holder
could not transfer such Transfer Restricted Senior Subordinated Notes
pursuant to a Shelf Registration Statement.
(g) Counterparts.This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an
original.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning
hereof.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to
the conflict of law rules thereof.
17
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those
set forth or referred to herein with respect to the registration rights
granted by the Company with respect to the Transfer Restricted Senior
Subordinated Notes. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
* * *
In witness whereof, the Company has executed this Agreement as of the date first
written above.
Telex Communications, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxxx
Vice President and Chief Financial Officer
18
