EXHIBIT 4.3
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EXECUTION COPY
$175,000,000
L-1 IDENTITY SOLUTIONS, INC.
3.75% Convertible Senior Notes due 2027
Registration Rights Agreement
May 17, 2007
BEAR, XXXXXXX & CO. INC.
BANC OF AMERICA SECURITIES LLC
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
This Registration Rights Agreement (the "AGREEMENT") is made and
entered into as of May 17, 2007, by and among L-1 Identity Solutions, Inc., a
Delaware corporation (the "ISSUER"), Bear, Xxxxxxx & Co. Inc. and Banc of
America Securities LLC acting on behalf of the several parties (the "INITIAL
PURCHASERS") named in Schedule I to that certain Purchase Agreement, dated as of
May 10, 2007 (the "PURCHASE AGREEMENT") among the Issuer and the Initial
Purchasers.
As an inducement to the Initial Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the Initial
Purchasers thereunder, the Issuer agrees with the Initial Purchasers, for the
benefit of the holders (including the Initial Purchasers) of the Notes and the
Shares (as defined below) (collectively, the "HOLDERS"), as follows:
1. Certain Definitions.
For purposes of this Agreement, the following terms shall have the
following meanings:
(a) "ADDITIONAL INTEREST" has the meaning assigned
thereto in Section 2(d).
(b) "ADDITIONAL INTEREST PAYMENT DATE" has the meaning
assigned thereto in Section 2(d).
(c) "AGREEMENT" means this Registration Rights Agreement,
as the same may be amended from time to time pursuant to the
terms hereof.
(d) "CLOSING DATE" means the earliest date on which any
Notes are initially issued.
(e) "COMMISSION" means the Securities and Exchange
Commission, or any other federal agency at the time
administering the Exchange Act or the Securities Act,
whichever is the relevant statute for the particular purpose.
(f) "DEFERRAL NOTICE" has the meaning assigned thereto in
Section 3(b).
(g) "DEFERRAL PERIOD" has the meaning assigned thereto in
Section 3(b).
(h) "XXXXX" has the meaning assigned thereto in Section
2(c)(ii).
(i) "EFFECTIVE PERIOD" has the meaning assigned thereto
in Section 2(a).
(j) "EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated
thereunder.
(k) "HOLDER" means each holder, from time to time, of
Registrable Securities (including the Initial Purchasers).
(l) "INDENTURE" means the Indenture, dated as of the date
hereof, between the Issuer and The Bank of New York, as
Trustee, pursuant to which the Notes are being issued.
(m) "INITIAL PURCHASERS" has the meaning specified in the
first paragraph of this Agreement.
(n) "ISSUER" has the meaning specified in the first
paragraph of this Agreement.
(o) "MATERIAL EVENT" has the meaning assigned thereto in
Section 3(a)(iii).
(p) "MAJORITY HOLDERS" shall mean, on any date, holders
of the majority of the Shares constituting Registrable
Securities; for the purposes of this definition, Holders of
Notes constituting Registrable Securities shall be deemed to
be the Holders of the number of Shares into which such Notes
are or would be convertible as of such date.
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(q) "NASD" shall mean the National Association of
Securities Dealers, Inc.
(r) "NASD RULES" shall mean the Conduct Rules and the
By-Laws of the NASD.
(s) "NOTES" mean the 3.75% Convertible Senior Notes due
2027 of the Issuer, issued on the date hereof under the
Indenture and sold by the Issuer to the Initial Purchasers.
(t) "NOTICE AND QUESTIONNAIRE" means a written notice
delivered to the Issuer containing substantially the
information called for by the Form of Selling Securityholder
Notice and Questionnaire attached as Annex A to the Offering
Memorandum.
(u) "NOTICE HOLDER" means, on any date, any Holder that
has delivered a Notice and Questionnaire to the Issuer on or
prior to such date.
(v) "OFFERING MEMORANDUM" means the Offering Memorandum
dated May 10, 2007 relating to the offer and sale of the
Notes.
(w) "PERSON" means a corporation, association,
partnership, organization, business, individual, government or
political subdivision thereof or governmental agency.
(x) "PROSPECTUS" means the prospectus included in any
Shelf Registration Statement, as amended or supplemented by
any amendment or prospectus supplement, including
post-effective amendments, and all materials incorporated by
reference or explicitly deemed to be incorporated by reference
in such Prospectus.
(y) "PURCHASE AGREEMENT" has the meaning specified in the
first paragraph of this Agreement.
(z) "REGISTRABLE SECURITIES" means:
(i) the Notes, until the earliest of (i) with respect to
any specific Note, their resale in accordance with the Shelf
Registration Statement, (ii) the expiration of the holding
period applicable to such Notes under Rule 144(k) under the
Securities Act or any successor provision or similar
provisions then in effect ("Rule 144(k)"), (iii) the date on
which all such Notes are freely transferable by persons who
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are not affiliates of the Issuer without registration under
the Securities Act, or (iv) the date on which all such notes
have been converted or otherwise cease to be outstanding; and
(ii) the Shares, if any, issuable upon conversion of the
Notes, until the earliest of (i) with respect to any specific
Share, their resale in accordance with the Shelf Registration
Statement, (ii) the expiration of the holding period
applicable to such Shares under Rule 144(k), (iii) the date on
which all such Shares are freely transferable by persons who
are not affiliates of the Issuer without registration under
the Securities Act, or (iv) the date on which all such shares
of common stock cease to be outstanding.
(aa) "REGISTRATION DEFAULT" has the meaning assigned
thereto in Section 2(d).
(bb) "REGISTRATION EXPENSES" has the meaning assigned
thereto in Section 5.
(cc) "RULE 144," "RULE 405" and "RULE 415" mean, in each
case, such rule as promulgated under the Securities Act.
(dd) "SECURITIES" means, collectively, the Notes and the
Shares.
(ee) "SECURITIES ACT" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
(ff) "SHARES" means the shares of common stock of the
Issuer, par value $0.001 per share, into which the Notes are
convertible or that have been issued upon any conversion of
the Notes for common stock of the Issuer.
(gg) "SHELF REGISTRATION STATEMENT" means the shelf
registration statement referred to in Section 2(a), as amended
or supplemented by any amendment or supplement, including
post-effective amendments, and all materials incorporated by
reference or explicitly deemed to be incorporated by reference
in such Shelf Registration Statement.
(hh) "SPECIAL COUNSEL" shall have the meaning assigned
thereto in Section 5.
(ii) "TRUST INDENTURE ACT" means the Trust Indenture Act
of 1939, as amended, or any successor thereto, and the rules,
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regulations and forms promulgated thereunder, all as the same
shall be amended from time to time.
(jj) "TRUSTEE" shall have the meaning assigned such term
in the Indenture.
Unless the context otherwise requires, any reference herein to
a "Section" or "clause" refers to a Section or clause, as the case may
be, of this Agreement, and the words "herein," "hereof" and "hereunder"
and other words of similar import refer to this Agreement as a whole
and not to any particular Section or other subdivision. Unless the
context otherwise requires, any reference to a statute, rule or
regulation refers to the same (including any successor statute, rule or
regulation thereto) as it may be amended from time to time.
2. Registration Under the Securities Act.
(a) The Issuer agrees to use commercially
reasonable efforts to file the Shelf Registration Statement
covering resales of the Registrable Securities pursuant to
Rule 415 or any similar rule that may be adopted by the
Commission with the Commission within 120 days after the
Closing Date and to cause the Shelf Registration Statement to
become effective under the Securities Act within 210 days
after the Closing Date and to keep such Shelf Registration
Statement continuously effective, subject to Section 3(b),
until each of the Registrable Securities covered by the Shelf
Registration Statement ceases to be a Registrable Security
(the "EFFECTIVE PERIOD"). The Issuer's securityholders (other
than Holders of Registrable Securities) shall not have the
right to include any of the securities of the Issuer in the
Shelf Registration Statement.
(b) The Issuer further agrees that it shall
cause the Shelf Registration Statement and the Prospectus and
any amendment or supplement thereto, as of the effective date
of the Shelf Registration Statement or such amendment or
supplement, (i) to comply in all material respects with the
applicable requirements of the Securities Act and (ii) not to
contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary in order to make the statements therein (in the case
of the Prospectus, in the light of the circumstances under
which they were made) not misleading, and the Issuer agrees to
furnish to the Holders of the Registrable Securities copies of
any supplement or amendment upon the request of any such
Holder prior to its being used or promptly following its
filing with the Commission; provided, however, that the Issuer
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shall have no obligation to deliver to Holders of Registrable
Securities copies of any amendment consisting exclusively of
an Exchange Act report or other Exchange Act filing otherwise
publicly available on the Issuer's website. If the Shelf
Registration Statement ceases to be effective for any reason
at any time during the Effective Period (other than because
all Registrable Securities registered thereunder shall have
been sold pursuant thereto or shall have otherwise ceased to
be Registrable Securities), the Issuer shall use commercially
reasonable efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof.
(c) Each Holder of Registrable Securities agrees
that if such Holder wishes to sell Registrable Securities
pursuant to the Shelf Registration Statement and related
Prospectus, it will do so only in accordance with this Section
2(c) and Section 3(b). Not less than thirty (30) calendar days
prior to the expected effective time of the Shelf Registration
Statement, the Issuer shall give notice to each of the Holders
of its intention to file the Shelf Registration Statement,
together with a Notice and Questionnaire, in the same manner
as it would give notice to the Holders under the Indenture. No
Holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement as of the
effective time, and no Holder shall be entitled to use the
Prospectus for resales of Registrable Securities at any time,
unless such Holder has returned a completed and signed Notice
and Questionnaire to the Issuer by the deadline for response
set forth therein; provided, however, Holders shall have at
least 28 calendar days from the date on which the Notice and
Questionnaire is first given to such Holders to return a
completed and signed Notice and Questionnaire to the Issuer.
After the effective time, the Issuer shall, upon the request
of any Holder that is not then a Notice Holder, promptly send
a Notice and Questionnaire to such Holder. The Issuer shall
not be required to take any action to name such Holder as a
selling securityholder in the Shelf Registration Statement or
to enable such Holder to use the Prospectus for resales of
Registrable Securities (i) until such Holder has returned a
completed and signed Notice and Questionnaire to the Issuer by
the deadline for response set in compliance with this Section
2(c) or (ii) if the use of the Prospectus has been suspended
pursuant to Section 3(b). From and after the date the Shelf
Registration Statement becomes effective, the Issuer shall, as
promptly as is practicable after the date a completed Notice
and Questionnaire is received from a Holder, and in any event
within thirty (30) days after the date of receipt of such
Notice and Questionnaire, or if the use of the Prospectus has
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been suspended by the Issuer under Section 3(b) hereof at the
time of receipt of the Notice and Questionnaire, within thirty
(30) days after the expiration of the period during which the
use of the Prospectus is suspended:
(i) if required by applicable law, file with the
Commission a post-effective amendment to the Shelf
Registration Statement or prepare and, if required by
applicable law, file a supplement to the related Prospectus or
file any other required document so that the Holder delivering
such Notice and Questionnaire is named as a selling
securityholder in the Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder
to deliver such Prospectus to purchasers of the Registrable
Securities in accordance with applicable law and, if the
Issuer shall file a post-effective amendment to the Shelf
Registration Statement, use commercially reasonable efforts to
cause such post-effective amendment to become effective under
the Securities Act as promptly as is practicable.
Notwithstanding the foregoing, the Issuer shall not be
required to file more than one post-effective amendment to the
Shelf Registration Statement or supplement to the related
Prospectus during any calendar quarter;
(ii) unless such copy is available on the
Electronic Data Gathering Analysis and Retrieval System
("XXXXX"), upon request provide such Holder copies of any
documents filed pursuant to Section 2(c)(i); and
(iii) notify such Holder as promptly as
practicable after the effectiveness under the Securities Act
of any post-effective amendment filed pursuant to Section
2(c)(i).
(d) If any of the following events (any such
event a "REGISTRATION DEFAULT") shall occur, then additional
interest ("ADDITIONAL INTEREST") shall become payable by the
Issuer to Holders in respect of the Notes as follows:
(i) if the Shelf Registration Statement does not
become effective with the Commission within 210 days following
the Closing Date, then commencing on the 211th day after the
Closing Date, Additional Interest shall accrue on the
principal amount of the outstanding Notes at a rate of 0.25%
per annum for the first 90 days following such 211th day and
at a rate of 0.50% per annum thereafter; or
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(ii) if the Shelf Registration Statement becomes
effective but such Shelf Registration Statement ceases to be
effective at any time during the Effective Period (other than
pursuant to Section 3(b) hereof), then commencing on the day
such Shelf Registration Statement ceases to be effective,
Additional Interest shall accrue on the principal amount of
the outstanding Notes that are Registrable Securities at a
rate of 0.25% per annum for the first 90 days following such
date on which the Shelf Registration Statement ceases to be
effective and at a rate of 0.50% per annum thereafter; or
(iii) if the aggregate duration of Deferral
Periods in any period exceeds the number of days permitted in
respect of such period pursuant to Section 3(b) hereof, then
commencing on the day the aggregate duration of Deferral
Periods in any period exceeds the number of days permitted in
respect of such period (and again on the first day of any
subsequent Deferral Period during such period), Additional
Interest shall accrue on the principal amount of the
outstanding Notes that are Registrable Securities at a rate of
0.25% per annum for the first 90 days and at a rate of 0.50%
per annum thereafter;
provided, however, that the Additional Interest rate on the Notes shall
not exceed in the aggregate 0.50% per annum and shall not be payable
under more than one clause above for any given period of time, except
that if Additional Interest would be payable under more than one clause
above, but at a rate of 0.25% per annum under one clause and at a rate
of 0.50% per annum under the other, then the Additional Interest rate
shall be the higher rate of 0.50% per annum; provided further, however,
that (1) upon the effectiveness of the Shelf Registration Statement (in
the case of clause (i) above), (2) upon the effectiveness of the Shelf
Registration Statement which had ceased to remain effective (in the
case of clause (ii) above), (3) upon the termination of the Deferral
Period that caused the limit on the aggregate duration of Deferral
Periods in a period set forth in Section 3(b) to be exceeded (in the
case of clause (iii) above), (4) upon the termination of certain
transfer restrictions on the Securities as a result of the application
of Rule 144(k) or any successor provision or (5) for any period after
the second anniversary from the Closing Date, Additional Interest on
the Notes as a result of such clause, as the case may be, shall cease
to accrue. Additional Interest will accrue from and including the date
on which a Registration Default occurs but excluding the date on which
all Registration Defaults have been cured as set forth above.
Additional Interest on the Notes, if any, will be payable in
cash on May 15 and November 15 of each year (an "ADDITIONAL INTEREST
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PAYMENT DATE") to holders of record of outstanding Notes at the close
of business on May 1 or November 1, as the case may be, immediately
preceding the relevant Additional Interest Payment Date, in the same
manner and subject to the same terms as other interest is payable on
the Notes pursuant to the Indenture. Following the cure of all
Registration Defaults requiring the payment of Additional Interest to
the Holders of Securities pursuant to this Section, the accrual of such
Additional Interest will cease (without in any way limiting the effect
of any subsequent Registration Default requiring the payment of
Additional Interest).
The Issuer shall notify the Trustee immediately upon the
happening of each and every Registration Default. The Trustee shall be
entitled, on behalf of Holders of Securities, to seek any available
remedy for the enforcement of this Agreement, including for the payment
of any Additional Interest. Notwithstanding the foregoing, the parties
agree that no Additional Interest or other additional amounts shall be
payable in respect of any Shares that are Registrable Securities that
bear the legend set forth in the section entitled "Transfer
Restrictions" in the Offering Memorandum and, except as set forth in
the following sentence, the sole remedy for a violation of the terms of
this Agreement with respect to which additional monetary amounts are
expressly provided shall be as set forth in this Section 2(d). Nothing
shall preclude a Notice Holder or Holder of Registrable Securities from
pursuing or obtaining specific performance or other equitable relief
with respect to this Agreement.
3. Registration Procedures.
The following provisions shall apply to the Shelf Registration
Statement to be made effective pursuant to Section 2:
(a) The Issuer shall:
(i) use commercially reasonable efforts to cause
a registration statement with respect to the shelf
registration on Form S-3 to become effective in accordance
with Section 2(a) above;
(ii) use commercially reasonable efforts to
prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement
and file with the Commission any other required document as
may be necessary to keep such Shelf Registration Statement
continuously effective until the expiration of the Effective
Period; use commercially reasonable efforts to cause the
related Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force)
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under the Securities Act; and use commercially reasonable
efforts to comply with the provisions of the Securities Act
applicable to it with respect to the disposition of all
Securities covered by such Shelf Registration Statement during
the Effective Period in accordance with the intended methods
of disposition by the sellers thereof set forth in such Shelf
Registration Statement as so amended or such Prospectus as so
supplemented;
(iii) promptly notify the Notice Holders of
Registrable Securities that have requested or received copies
of the Prospectus included in the Shelf Registration Statement
(A) when such Shelf Registration Statement has become
effective, (B) of any request, following the effectiveness of
the Shelf Registration Statement, by the Commission or any
other Federal or state governmental authority for amendments
or supplements to the Shelf Registration Statement or related
Prospectus, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of such Shelf Registration
Statement or the initiation or written threat of any
proceedings for that purpose, (D) of the receipt by the Issuer
of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or written threat of any
proceeding for such purpose, (E) of the occurrence of (but not
the nature of or details concerning) any event or the
existence of any fact (a "MATERIAL EVENT") as a result of
which (i) the Shelf Registration Statement shall 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 not misleading, or (ii) any
Prospectus shall 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 the
light of the circumstances under which they were made, not
misleading (provided, however, that no notice by the Issuer
shall be required pursuant to this clause (E) in the event
that the Issuer either promptly files a prospectus supplement
to update the Prospectus or timely filed a Form 8-K or other
appropriate Exchange Act report that is incorporated by
reference into the Shelf Registration Statement, which, in
either case, contains the requisite information with respect
to such Material Event that results in such Shelf Registration
Statement no longer containing any untrue statement of
material fact or omitting to state a material fact necessary
to make the statements contained therein not misleading), (F)
of the determination by the Issuer that a post-effective
amendment to the Shelf Registration Statement (other than for
the purpose of naming a Notice Holder as a selling
securityholder therein) will be filed with the Commission,
which notice may, at the discretion of the Issuer (or as
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required pursuant to Section 3(b)), state that it constitutes
a Deferral Notice, in which event the provisions of Section
3(b) shall apply or (G) at any time when a Prospectus is
required to be delivered under the Securities Act, that the
Shelf Registration Statement or Prospectus does not conform in
all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder;
(iv) prior to any public offering of the
Registrable Securities pursuant to the Shelf Registration
Statement, use commercially reasonable efforts to register or
qualify, or cooperate with the Notice Holders of Securities
included therein and their respective counsel in connection
with the registration or qualification of, such Securities for
offer and sale under the securities or blue sky laws of such
jurisdictions as any such Notice Holders reasonably request in
writing and do any and all other acts or things reasonably
necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities covered by the Shelf
Registration Statement; prior to any public offering of the
Registrable Securities pursuant to the Shelf Registration
Statement, use commercially reasonable efforts to keep each
such registration or qualification (or exemption therefrom)
effective during the Effective Period in connection with such
Notice Holder's offer and sale of Registrable Securities
pursuant to such registration or qualification (or exemption
therefrom) and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such
jurisdictions of such Registrable Securities in the manner set
forth in the Shelf Registration Statement and the related
Prospectus; provided that the Issuer will not be required to
qualify generally to do business in any jurisdiction where it
is not then so qualified or to take any action which would
subject it to general service of process or to taxation in any
such jurisdiction where it is not then so subject;
(v) use commercially reasonable efforts to
prevent the issuance of, and if issued, to obtain the
withdrawal of any order suspending the effectiveness of the
Shelf Registration Statement or any post-effective amendment
thereto, and to lift any suspension of the qualification of
any of the Registrable Securities for sale in any jurisdiction
in which they have been qualified for sale, in each case at
the earliest practicable date;
(vi) upon reasonable notice, throughout the
Effective Period, (i) during normal business hours, make
reasonably available upon appropriate agreement by such
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parties to maintain confidentiality and appropriately use such
information, for inspection by a representative of, and
Special Counsel acting for, Majority Holders of the Securities
being sold and any underwriter (and its counsel) participating
in any disposition of Securities pursuant to such Shelf
Registration Statement, all relevant financial and other
records, pertinent corporate documents and properties of the
Issuer and their subsidiaries and (ii) use commercially
reasonable efforts to have the officers, directors, employees,
accountants and counsel of the Issuer supply all relevant
information reasonably requested by such representative,
Special Counsel or any such underwriter in connection with
such Shelf Registration Statement;
(vii) if requested by Majority Holders of the
Securities being sold in an underwriting, its Special Counsel
or the managing underwriters (if any) in connection with such
Shelf Registration Statement, use commercially reasonable
efforts to cause (a) its counsel to deliver an opinion
relating to the Shelf Registration Statement and the
Securities in customary form, (b) the officers of the Issuer
to execute and deliver all customary documents and
certificates requested by the Majority Holders of the
Securities being sold, their Special Counsel or the managing
underwriters (if any) and (c) the independent public
accountants of the Issuer to provide a comfort letter or
letters in customary form, subject to receipt of appropriate
documentation as contemplated and only if permitted by
Statement of Auditing Standards No. 72, provided that the
Registrable Securities shall not be sold in any underwritten
offering without the prior written consent of the Issuer;
(viii) if reasonably requested by the Initial
Purchasers or any Notice Holder, promptly incorporate in a
prospectus supplement or post-effective amendment to the Shelf
Registration Statement such information as the Initial
Purchasers or such Notice Holder shall, on the basis of a
written opinion of nationally-recognized counsel experienced
in such matters, determine to be required to be included
therein by applicable law and make any required filings of
such prospectus supplement or such post-effective amendment;
provided, that the Issuer shall not be required to take any
actions under this Section 3(a)(viii) that are not, in the
reasonable opinion of counsel for the Issuer, in compliance
with applicable law;
(ix) promptly furnish to each Notice Holder and
the Initial Purchasers, upon their request and without charge,
at least one (1) conformed copy of the Shelf Registration
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Statement and any amendments thereto, including financial
statements but excluding schedules, all documents incorporated
or deemed to be incorporated therein by reference and all
exhibits; provided, however, that the Issuer shall have no
obligation to deliver to Notice Holders or the Initial
Purchasers a copy of any amendment consisting exclusively of
an Exchange Act report or other Exchange Act filing otherwise
publicly available on XXXXX;
(x) during the Effective Period, deliver to each
Notice Holder in connection with any sale of Registrable
Securities pursuant to the Shelf Registration Statement, upon
its request and without charge, as many copies of the
Prospectus relating to such Registrable Securities (including
each preliminary prospectus) and any amendment or supplement
thereto as such Notice Holder may reasonably request; and the
Issuer hereby consents (except during such periods that a
Deferral Notice is outstanding and has not been revoked) to
the use of such Prospectus or each amendment or supplement
thereto by each Notice Holder in connection with any offering
and sale of the Registrable Securities covered by such
Prospectus or any amendment or supplement thereto in the
manner set forth therein; and
(xi) cooperate with the Notice Holders of
Securities to facilitate the timely preparation and delivery
of global or definitive certificates representing Securities
to be sold pursuant to the Shelf Registration Statement free
of any restrictive legends and, in the case of definitive
certificates, in such denominations and registered in such
names as the Holders thereof may request in writing at least
three business days prior to sales of Securities pursuant to
such Shelf Registration Statement.
(b) Upon (A) the issuance by the Commission of a
stop order suspending the effectiveness of the Shelf
Registration Statement or the initiation of proceedings with
respect to the Shelf Registration Statement under Section 8(d)
or 8(e) of the Securities Act, (B) the occurrence of any event
or the existence of any Material Event as a result of which
the Shelf Registration Statement shall 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 not misleading, or any Prospectus shall
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 the light of the
circumstances under which they were made, not misleading, or
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(C) the occurrence or existence of any corporate development
that, in the discretion of the Issuer, makes it appropriate to
suspend the availability of the Shelf Registration Statement
and the related Prospectus, the Issuer will (i) in the case of
clause (B) above, subject to the third sentence of this
provision, as promptly as practicable prepare and file a
post-effective amendment to the Shelf Registration Statement
or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required
document that would be incorporated by reference into such
Shelf Registration Statement and Prospectus so that such Shelf
Registration Statement does 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 not misleading, and such Prospectus does 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 the light of the circumstances
under which they were made, not misleading, as thereafter
delivered to the purchasers of the Registrable Securities
being sold thereunder, and, in the case of a post-effective
amendment to the Shelf Registration Statement, subject to the
third sentence of this provision, use commercially reasonable
efforts to cause it to become effective as promptly as is
practicable, and (ii) give notice to the Notice Holders that
the availability of the Shelf Registration Statement is
suspended (a "DEFERRAL NOTICE"), but need not specify the
nature of the event giving rise to a suspension in such
notice. Upon receipt of any Deferral Notice, each Notice
Holder agrees not to sell any Registrable Securities pursuant
to the Shelf Registration Statement until such Notice Holder's
receipt of copies of the supplemented or amended Prospectus
provided for in clause (i) above, or until it is advised in
writing by the Issuer that the Prospectus may be used, and has
received copies of any additional or supplemental filings that
are incorporated or deemed incorporated by reference in such
Prospectus. The Issuer will use commercially reasonable
efforts to ensure that the use of the Prospectus may be
resumed (x) in the case of clause (A) above, as promptly as
practicable, (y) in the case of clause (B) above, as soon as,
in the sole judgment of the Issuer, public disclosure of such
Material Event would not be prejudicial to or contrary to the
interests of the Issuer or, if necessary to avoid unreasonable
burden or expense, as soon as practicable thereafter and (z)
in the case of clause (C) above, as soon as, in the discretion
of the Issuer, such suspension is no longer appropriate;
provided that the period during which the availability of the
Shelf Registration Statement and any Prospectus is suspended
(the "DEFERRAL PERIOD"), without the Issuer incurring any
obligation to pay Additional Interest pursuant to Section
14
2(d), shall not exceed one hundred and twenty (120) days in
the aggregate in any twelve (12) month period.
(c) Each Holder of Registrable Securities agrees
that upon receipt of any Deferral Notice from the Issuer, such
Holder shall forthwith discontinue (and cause any placement or
sales agent or underwriters acting on its behalf to
discontinue) the disposition of Registrable Securities
pursuant to the Shelf Registration Statement until such Holder
(i) shall have received copies of such amended or supplemented
Prospectus or (ii) shall have received notice from the Issuer
that the disposition of Registrable Securities pursuant to the
Shelf Registration may continue.
(d) The Issuer may require each Holder of
Registrable Securities as to which any registration pursuant
to Section 2(a) is being effected to furnish to the Issuer
such information, in addition to that elicited by the Notice
and Questionnaire, regarding such Holder and such Holder's
intended method of distribution of such Registrable Securities
as the Issuer may from time to time reasonably request in
writing, but only to the extent that such information is
required in order to comply with the Securities Act or other
applicable law. Each such Holder agrees to notify the Issuer
as promptly as practicable of any inaccuracy or change in
information previously furnished by such Holder to the Issuer
or of the occurrence of any event in either case as a result
of which any Prospectus relating to such registration contains
or would contain an untrue statement of a material fact
regarding such Holder or such Holder's intended method of
disposition of such Registrable Securities or omits to state
any material fact regarding such Holder or such Holder's
intended method of disposition of such Registrable Securities
required to be stated therein or necessary to make the
statements therein not misleading, and promptly to furnish to
the Issuer any additional information required to correct and
update any previously furnished information or required so
that such Prospectus shall not contain, with respect to such
Holder or the disposition of such Registrable Securities, an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading.
(e) The Issuer shall comply with all applicable
rules and regulations of the Commission and make generally
available to its securityholders earning statements (which
need not be audited) satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any
15
similar rule promulgated under the Securities Act) no later
than (i) 40 days after the end of any 12-month period (or 60
days after the end of any 12-month period if such period is a
fiscal year) if the Issuer is at such time an "accelerated
filer" and (ii) 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) if the Issuer is not an "accelerated
filer" commencing on the first day of the first fiscal quarter
of such Issuer commencing after the effective date of the
Shelf Registration Statement, which statements shall cover
said 12-month periods.
(f) The Issuer shall provide a CUSIP number for
all Registrable Securities covered by the Shelf Registration
Statement not later than the effective date of such Shelf
Registration Statement and provide the Trustee and the
transfer agent for the Shares with one or more certificates
for the Registrable Securities that are in a form eligible for
deposit with The Depository Trust Company.
(g) Until the expiration of the Effective
Period, the Issuer will not, and will not permit any of its
"affiliates" (as defined in Rule 144) to, resell any of the
Securities that have been reacquired by any of them except
pursuant to an effective registration statement under the
Securities Act.
(h) The Issuer shall cause the Indenture to be
qualified under the Trust Indenture Act in a timely manner.
(i) The Issuer shall enter into such customary
agreements and take all such other necessary and lawful
actions in connection therewith (including those reasonably
requested by the Majority Holders of the Registrable
Securities being sold) in order to expedite or facilitate
disposition of such Registrable Securities.
4. Holder's Obligations.
Each Holder agrees, by acquisition of the Registrable
Securities, that no Holder of Registrable Securities shall be entitled
to sell any of such Registrable Securities pursuant to the Shelf
Registration Statement or to receive a Prospectus relating thereto,
unless such Holder has furnished the Issuer with a Notice and
Questionnaire pursuant to Section 2(c) hereof (including the
information required to be included in such Notice and Questionnaire)
and the additional information set forth in the next sentence. Each
Notice Holder agrees promptly to furnish to the Issuer all information
16
required to be disclosed in order to make the information previously
furnished to the Issuer by such Notice Holder not misleading and any
other information regarding such Notice Holder and the distribution of
such Registrable Securities as may be required to be disclosed in the
Shelf Registration Statement under applicable law or pursuant to
Commission comments. Each Holder further agrees not to sell any
Registrable Securities pursuant to the Shelf Registration Statement
without delivering, or causing to be delivered, a Prospectus to the
purchaser thereof and, following termination of the Effective Period,
to notify the Issuer, within 10 Business Days of a request by the
Issuer, of the amount of Registrable Securities sold pursuant to the
Shelf Registration Statement and, in the absence of a response, the
Issuer may assume that all of the Holder's Registrable Securities were
so sold.
5. Registration Expenses.
The Issuer agrees to bear and to pay or cause to be paid
promptly upon request being made therefor all expenses incident to the
Issuer's performance of or compliance with this Agreement, including,
but not limited to, (a) all Commission and any NASD registration and
filing fees and expenses, (b) all fees and expenses in connection with
the qualification of the Registrable Securities for offering and sale
under the state securities and Blue Sky laws referred to in Section
3(a)(iv) hereof, including reasonable fees and disbursements of one
counsel for the placement agent or underwriters, if any, in connection
with such qualifications, (c) all expenses relating to the preparation,
printing, distribution and reproduction of the Shelf Registration
Statement, the related Prospectus, each amendment or supplement to each
of the foregoing, the certificates representing the Securities and all
other documents relating hereto, (d) fees and expenses of the Trustee
and of the registrar and transfer agent for the Shares, (e) fees,
disbursements and expenses of counsel and independent certified public
accountants of the Issuer (including the expenses of any reports
required by the Securities Act or the rules and regulations thereunder
to be included or incorporated by reference in the Shelf Registration
Statement or "cold comfort" letters required by or incident to such
performance and compliance) and (f) reasonable fees, disbursements and
expenses of one counsel for the Holders of Registrable Securities
retained in connection with the Shelf Registration Statement, as
selected by the Issuer (unless reasonably objected to by the Majority
Holders of the Registrable Securities being registered, in which case
the Majority Holders shall select such counsel for the Holders)
("SPECIAL COUNSEL"), and fees, expenses and disbursements of any other
Persons, including special experts, retained by the Issuer in
connection with such registration (collectively, the "REGISTRATION
EXPENSES"). To the extent that any Registration Expenses are incurred,
17
assumed or paid by any Holder of Registrable Securities or any
underwriter or placement agent therefor, the Issuer shall reimburse
such Person for the full amount of the Registration Expenses so
incurred, assumed or paid promptly after receipt of a documented
request therefor. Notwithstanding the foregoing, the Holders of the
Registrable Securities being registered shall pay all underwriting
discounts and commissions and placement agent fees and commissions
attributable to the sale of such Registrable Securities and the fees
and disbursements of any counsel or other advisors or experts retained
by such Holders (severally or jointly), other than the counsel and
experts specifically referred to above.
6. Indemnification.
(a) The Issuer agrees to indemnify and hold
harmless each Holder (including, without limitation, the
Initial Purchasers) and each person, if any, who controls any
Holder within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, and each affiliate of such
Holder within the meaning of Rule 405 of the Securities Act
against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Shelf
Registration Statement or the Prospectus, or arise out of or
are based upon the 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, and
agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that
the Issuer will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of
or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission from any such
document, in reliance upon and in conformity with written
information provided by a Holder. This indemnity agreement
will be in addition to any liability that the Issuer may
otherwise have.
(b) Each Holder agrees to indemnify and hold
harmless the Issuer, and each person, if any, who controls the
Issuer within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, and each affiliate of the
18
Issuer within the meaning of Rule 405 of under the Securities
Act, against any and all losses, claims, damages or
liabilities to which the Issuer may become subject under the
Securities Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material
fact contained in any such Shelf Registration Statement or the
Prospectus, or arise out of or are based upon the 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, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity
with any information furnished to the Issuer by such Holder,
in its most recent Notice and Questionnaire or such other
written instrument, and agrees to reimburse the Issuer, as
incurred, for any legal or other expenses reasonably incurred
by it in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however,
that no such Holder shall be liable for any indemnity claims
hereunder in excess of the amount of net proceeds received by
such Holder from the sale of Registrable Securities pursuant
to such Shelf Registration Statement. This indemnity agreement
will be in addition to any liability which any such Holder may
otherwise have.
(c) Promptly after receipt by an indemnified
party under this Section 6 of notice of the commencement of
any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under
this Section 6, notify the indemnifying party in writing of
the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability
under paragraph (a) or (b) above unless and to the extent it
has been materially prejudiced through the forfeiture by the
indemnifying party of substantial rights and defenses and (ii)
will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b).
In case any such claim or action is brought against any
indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be
entitled to participate, at its own expense in the defense of
such action, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party to assume the
19
defense thereof with counsel reasonably satisfactory to such
indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ
its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such
counsel shall have been authorized in writing by one of the
indemnifying parties in connection with the defense of such
action, (ii) the indemnifying parties shall not have employed
counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or
(iii) such indemnified party or parties shall have reasonably
and in good faith concluded that there may be defenses
available to it or them which are different from or additional
to those available to one or all of the indemnifying parties
(in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such
fees and expenses shall be borne by the indemnifying parties.
No indemnifying party shall, without the prior written consent
of the indemnified parties, effect any settlement or
compromise of, or consent to the entry of judgment with
respect to, any pending or threatened claim, investigation,
action or proceeding in respect of which indemnity or
contribution may be or could have been sought by an
indemnified party under this Section 6 (whether or not the
indemnified party is an actual or potential party thereto),
unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all
liability arising out of such claim, investigation, action or
proceeding and (ii) does not include a statement as to or an
admission of fault, culpability or any failure to act, by or
on behalf of the indemnified party.
(d) The provisions of this Section 6 and Section
7 shall remain in full force and effect, regardless of any
investigation made by or on behalf of any Holder, the Issuer,
or any of the indemnified Persons referred to in this Section
6 and Section 7, and shall survive the sale by a Holder of
Securities covered by the Shelf Registration Statement.
7. Contribution.
If the indemnification provided for in Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
Section 6(a) or 6(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim,
20
damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits
received by the Issuer from the offering and sale of the Notes, on the
one hand, and a Holder with respect to the sale by such Holder of
Securities, on the other, or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Issuer and such
Holder on the other with respect to the statements or omissions that
resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Issuer on the one hand and a Holder
on the other with respect to such offering and such sale shall be
deemed to be in the same proportion as the total net proceeds from the
offering of the Notes (excluding discounts and commissions, but before
deducting expenses) received by or on behalf of the Issuer, on the one
hand, and the total net proceeds (excluding discounts and commissions,
but before deducting expenses) received by such Holder upon a resale of
the Securities, on the other, bear to the total gross proceeds from the
sale all Securities pursuant to the Shelf Registration Statement in the
offering of the Securities from which the contribution claim arises.
The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to the Issuer or information supplied by the Issuer on the one
hand or to any information contained in the relevant Notice and
Questionnaire or such other written instrument supplied by such Holder
on the other, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The parties hereto agree that it would not be
just and equitable if contributions pursuant to this Section 7 were to
be determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party
as a result of the loss, claim, damage or liability, or action in
respect thereof, referred to above in this Section 7 shall be deemed to
include, for purposes of this Section 7, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending or preparing to defend any such action or
claim. Notwithstanding the provisions of this Section 7, an
indemnifying party that is a Holder of Securities shall not be required
to contribute any amount in excess of the amount by which the total
price at which the Securities sold by such indemnifying party to any
purchaser exceeds the amount of any damages which such indemnifying
party has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
21
from any person who was not guilty of such fraudulent
misrepresentation.
8. Rule 144A and Rule 144.
So long as any Registrable Securities remain outstanding, the
Issuer shall use commercially reasonable efforts to file the reports
required to be filed by it under Rule 144A(d)(4) under the Securities
Act and the Exchange Act in a timely manner and, if at any time such
Issuer is not required to file such reports, it will, upon the written
request of any Holder of Restricted Securities, make publicly available
other information so long as necessary to permit sales of such Holder's
securities pursuant to Rules 144 and 144A. The Issuer covenants that it
will take such further action as any Holder of Restricted Securities
may reasonably request, all to the extent required from time to time to
enable such Holder to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions
provided by Rules 144 and 144A (including, without limitation, the
requirements of Rule 144A(d)(4)). Upon the written request of any
Holder of Registrable Securities, the Issuer shall promptly deliver to
such Holder a written statement as to whether it has complied with such
requirements. Notwithstanding the foregoing, nothing in this Section 8
shall be deemed to require the Issuer to register any of its securities
pursuant to the Exchange Act.
9. Miscellaneous.
(a) 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, unless the Issuer has obtained the
written consent of the Majority Holders. 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 whose Securities are being sold pursuant
to the Shelf Registration Statement and that does not directly
or indirectly affect the rights of other Holders may be given
by Holders of a majority in aggregate amount of the Securities
being sold by such Holders pursuant to the Shelf Registration
Statement.
(b) Notices. All notices and other
communications provided for or permitted hereunder shall be
made in writing by hand delivery, first class mail, telecopier
or air courier guaranteeing next-day delivery:
22
(i) If to the Issuer, initially at the address
set forth in the Purchase Agreement;
(ii) If to the Initial Purchasers, initially at
the address of the representative set forth in the Purchase
Agreement; and
(iii) If to a Holder, to the address of such
Holder set forth in the security register, the Notice and
Questionnaire or other records of the Issuer; provided,
however, that so long as the Securities will be in global
form, all notices hereunder may be delivered through The
Depository Trust Company, its nominees and their respective
successors and assigns, or such other depository institution.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; one
business day after being delivered to a next day air courier; five
business days after being deposited in the mail; and when receipt is
acknowledged by the recipient's telecopier machine, if sent by
telecopier.
(c) Successors and Assigns. This Agreement shall
be binding upon the Issuer and each of its successors and
assigns.
(d) Counterparts. This Agreement may be executed
in any number of counterparts (which may be delivered in
original form or by telecopier) and by the parties hereto in
separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(e) Definition of Terms. For purposes of this
Agreement, (a) the term "BUSINESS DAY" means any day on which
the New York Stock Exchange, Inc. is open for trading and (b)
except where otherwise expressly provided, the term
"AFFILIATE" has the meaning set forth in Rule 405 under the
Securities Act.
(f) Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of New York.
(h) Remedies. In the event of a breach by the
Issuer or by any Holder of any of its respective obligations
under this Agreement, each Holder or the Issuer, as the case
23
may be, in addition to being entitled to exercise all rights
granted by law, including recovery of damages (other than the
recovery of damages for a breach by the Issuer of its
obligations for which Additional Interest have been paid
pursuant to Section 2 hereof), will be entitled to specific
performance of its rights under this Agreement. The Issuer and
each Holder agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it
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, it shall waive the
defense that a remedy at law would be adequate.
(i) No Inconsistent Agreements. The Issuer
represents, warrants and agrees that (i) it has not entered
into, shall not, on or after the date of this Agreement, enter
into any agreement that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise
conflicts with the provisions hereof, (ii) there are no
contracts, commitments, agreements, arrangements,
understandings or undertakings of any kind to which the Issuer
is a party, or by which it is bound, granting to any person
the right to require either the Issuer to file a registration
statement under the Securities Act with respect to any
securities of the Issuer or requiring the Issuer to include
such securities with the Securities registered pursuant to any
registration statement and (iii) without limiting the
generality of the foregoing, without the written consent of
the Majority Holders, the Issuer shall not grant to any Person
the right to request the Issuer to register any securities of
the Issuer under the Securities Act unless the rights so
granted are not in conflict or inconsistent with the
provisions of this Agreement.
(j) No Piggyback on Registrations. Neither the
Issuer nor any of their security holders (other than the
Holders of Restricted Securities in such capacity) shall have
the right to include any securities of the Issuer in any Shelf
Registration Statement other than Registrable Securities.
(k) 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 commercially reasonable efforts to find and employ an
24
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 without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(l) Survival. The respective indemnities,
agreements, representations, warranties and each other
provision set forth in this Agreement or made pursuant hereto
shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by
or on behalf of any Holder of Registrable Securities, any
director, officer or affiliate of such Holder, any agent or
underwriter or any director, officer or affiliate thereof, or
any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Securities
pursuant to the Purchase Agreement and the transfer and
registration of Registrable Securities by such Holder.
(m) Securities Held by the Issuer, Etc. Whenever
the consent or approval of Holders of a specified percentage
of Securities is required hereunder, Securities held by the
Issuer or its affiliates (other than subsequent Holders of
Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such
Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required
percentage.
25
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon
this instrument will become a binding agreement among the Issuer and
the Initial Purchasers in accordance with its terms.
Very truly yours,
L-1 IDENTITY SOLUTIONS, INC.
By: /s/ Xxxxx X. XxXxxxx
--------------------------------
Name: Xxxxx X. XxXxxxx
Title: Executive Vice President,
Chief Financial Officer and
Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
BEAR, XXXXXXX & CO. INC.
BANC OF AMERICA SECURITIES LLC
By: BEAR, XXXXXXX & CO. INC.
Acting on behalf of themselves
and as Representative
of the Initial Purchasers
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Managing Director
26
