Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of December 15, 1995 by and among Exide Corporation, a Delaware
corporation (the "Company"), and Xxxxxx Xxxxxxx & Co. Incorporated, Salomon
Brothers Inc and BT Securities Corporation (the "Placement Agents") pursuant to
the Placement Agreement, dated as of December 11, 1995 (the "Placement
Agreement"), between the Company and the Placement Agents. In order to induce
the Placement Agents to enter into the Placement Agreement, the Company has
agreed to provide the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Placement
Agreement.
The Company agrees with the Placement Agents, (i) for their benefit as
Placement Agents and (ii) for the benefit of the holders from time to time of
the Notes (including the Placement Agents) and the holders from time to time of
the Common Stock issued upon conversion of the Notes (each of the foregoing a
"Holder" and together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Placement Agreement. As
used in this Agreement, the following terms shall have the following meanings:
Affiliate: "Affiliate" means, with respect to any specified person,
(i) any other person directly or indirectly controlling or controlled by,
or under direct or indirect common control with, such specified person or
(ii) any officer or director of such other person. For purposes of this
definition, the term "control" (including the terms "controlling,"
"controlled by" and "under common control with") of a person means the
possession, direct or indirect, of the power (whether or not exercised) to
direct or cause the direction of the management and policies of a person,
whether through the ownership of voting securities, by contract, or
otherwise.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in The City of New York are
authorized or obligated by law or executive order to close.
Common Stock: The shares of common stock, $.01 par value per share,
of the Company and any other shares of common stock as may constitute
"Common Stock" for purposes of the Indenture, in each case, as issuable or
issued upon conversion of the Notes.
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Damages Accrual Period: See Section 2(e) hereof.
Deferral Period: See Section 2(d) hereof.
Effectiveness Period: The period commencing with the date hereof and
ending on the earlier of the expiration of the time period referred to in
Rule 144(k) (taking into account the provisions of Rule 144(d) under the
Securities Act) and the date that all Registrable Securities have ceased to
be Registrable Securities.
Event: See Section 2(e) hereof.
Event Date: See Section 2(e) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Filing Date: See Section 2(a) hereof.
Holder: See the second paragraph of this Agreement.
Indenture: The Indenture, dated as of December 15, 1995, between the
Company and The Bank of New York, as trustee, pursuant to which the Notes
are being issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Initial Shelf Registration: See Section 2(a) hereof.
Managing Underwriters: The investment banking firm or firms that
shall manage or co-manage an Underwritten Offering.
Notes: The 2.90% Convertible Senior Subordinated Notes due 2005 of
the Company being issued and sold pursuant to the Placement Agreement and
the Indenture.
Notice Holder: See the second paragraph of Section 2(d)(i) hereof.
Placement Agents: Xxxxxx Xxxxxxx & Co. Incorporated, Salomon Brothers
Inc and BT Securities Corporation.
Placement Agreement: See the first paragraph of this Agreement.
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Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference in such
Prospectus.
Registrable Securities: The Common Stock of the Company into which
the Notes are convertible or converted, whether or not such Notes have been
converted, and at all times subsequent thereto, and any Common Stock issued
with respect thereto upon any stock dividend, split or similar event until,
in the case of any such Common Stock, (i) it is effectively registered
under the Securities Act and disposed of in accordance with the
Registration Statement covering it, (ii) it is saleable by the holder
thereof pursuant to Rule 144(k) or (iii) it is sold to the public pursuant
to Rule 144, and, as a result of the event or circumstance described in
either of the foregoing clauses (i) through (iii), the legends with respect
to transfer restrictions required under the Indenture are removed or
removable in accordance with the terms of the Indenture.
Registration Expenses: See Section 5 hereof.
Registration Statement: Any registration statement of the Company
which covers any of the Registrable Securities pursuant to the provisions
of this Agreement, including the Prospectus, amendments, and supplements to
such registration statement, including post-effective amendments, all
exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Rule 144: Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
Rule 144(k): Rule 144(k) under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
Rule 144A: Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
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Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the SEC thereunder.
Selling Period: See the second paragraph of Section 2(d)(i) hereof.
Shelf Registration: See Section 2(a) hereof.
shelf registration statement: A registration statement for an
offering to be made on a continuous basis pursuant to Rule 415 under the
Securities Act registering the resale from time to time by the holders
thereof of all of the Registrable Securities upon and following conversion
of the Notes.
Subsequent Shelf Registration: See Section 2(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The Trustee under the Indenture.
Underwritten Registration or Underwritten Offering: A registration in
which Registrable Securities are sold to an underwriter for reoffering to
the public.
2. Shelf Registration.
(a) Shelf Registration. The Company shall prepare and file with the
SEC, as soon as practicable but in any event on or prior to the date sixty (60)
days following the latest date of original issuance of the Notes (the "Filing
Date"), a shelf registration statement (the "Initial Shelf Registration"). The
Initial Shelf Registration shall be on Form S-3 or another appropriate form
permitting registration of the Registrable Securities for resale by the Holders
in one or more Underwritten Offerings, privately negotiated transactions, sales
on the New York Stock Exchange, sales to brokers or dealers or otherwise. The
Company shall use reasonable efforts to cause the Initial Shelf Registration to
be declared effective under the Securities Act as soon as practicable and to
keep the Initial Shelf Registration continuously effective under the Securities
Act until the earlier of the expiration of the Effectiveness Period or the date
a Subsequent Shelf Registration (as defined below) covering all of the
Registrable Securities has been declared effective under the Securities Act.
The Initial Shelf Registration and all Subsequent Shelf Registrations shall be
referred to herein collectively as the "Shelf Registration".
(b) If the Initial Shelf Registration or any Subsequent Shelf
Registration 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 or shall have ceased to be Registrable
Securities), the Company shall use reasonable efforts to obtain the
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prompt withdrawal of any order suspending the effectiveness thereof, and in any
event shall within thirty (30) days of such cessation of effectiveness amend
such Shelf Registration in a manner reasonably expected to obtain the withdrawal
of the order suspending the effectiveness thereof, or file an additional shelf
registration statement covering all of the Registrable Securities (a "Subsequent
Shelf Registration") unless an amendment or Subsequent Shelf Registration could
not reasonably be expected to remedy such lapse. If a Subsequent Shelf
Registration is filed, the Company shall use reasonable efforts to cause such
Subsequent Shelf Registration to be declared effective as soon as practicable
after such filing and to keep such Registration Statement continuously effective
until the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration if
required by the rules, regulations or instructions applicable to the
registration form under the Securities Act used by the Company for such Shelf
Registration, if required by the Securities Act or if reasonably requested by
the Placement Agents or by the Trustee on behalf of the Holders of the
Registrable Securities covered by such Registration Statement or by the Managing
Underwriters of such Registrable Securities; provided that the party or parties
making such request shall have furnished to the Company with such request a
written description of such request and reasonable legal grounds therefor.
(d) Each Holder of Registrable Securities agrees that if such Holder
wishes to distribute its Registrable Securities pursuant to a Shelf Registration
and related Prospectus, it will do so only in accordance with this Section 2(d).
Each Holder of Registrable Securities agrees to give written notice to the
Company prior to any intended distribution of Registrable Securities under the
Shelf Registration, which notice shall specify the date on which such Holder
intends to begin such distribution. By giving such notice, the Holder consents
and agrees to the terms and conditions of this Agreement and accepts both the
rights and duties set forth herein. Within five Business Days after receipt of
such notice, the Company shall either:
(i) (A) If necessary, prepare and file with the Commission a post-
effective amendment to the Shelf Registration or a supplement to the
related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required document so
that such Registration Statement will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and so
that, as thereafter delivered to purchasers of the Registrable Securities
being sold thereunder, such Prospectus will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; (B) provide the
Holders of the Registrable Securities who gave such notice copies of any
documents filed pursuant to Section 2(d)(i)(A); and (C) inform each such
Holder
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that the Company has complied with its obligations in Section 2(d)(i)(A) or
that it is not necessary for the Company to take any of the actions
described in Section 2(d)(i)(A) (or that, if the Company has filed a post-
effective amendment to the Shelf Registration which has not yet been
declared effective, the Company will notify each such Holder to that
effect, will use reasonable efforts to secure the effectiveness of such
post-effective amendment as promptly as practicable and will immediately
notify each such Holder when the amendment has become effective).
Each Holder who has given notice of intention to distribute such
Holder's Registrable Securities in accordance with this Section 2(d) (a
"Notice Holder") shall distribute all or any such Registrable Securities
pursuant to the Shelf Registration and related Prospectus only upon notice
by the Company that the Registration Statement and Prospectus may be used
for such purpose pursuant to clause 2(d)(i)(C) above and only during the
45-day period commencing with the date on which the Company gives such
notice (such 45-day period is referred to as a "Selling Period"). The
Notice Holders will not distribute any Registrable Securities pursuant to
such Registration Statement or Prospectus after such Selling Period without
giving a new notice of intention to distribute pursuant to Section 2(d)
hereof and receiving a further notice from the Company pursuant to Section
2(d)(i)(C) hereof.
(ii) In the event of the happening of any event (A) of the kind
described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv), 3(c)(v), or 3(c)(vi)
hereof or (B) that the Company believes in good faith makes it advisable to
suspend use of the Prospectus for a discrete period of time due to pending
material corporate developments or similar material events that have not
yet been publicly disclosed and as to which the Company believes in good
faith that public disclosure will be disadvantageous to the Company and/or
its stockholders, the Company shall deliver a certificate in writing,
signed by its Chief Executive Officer, Chief Financial Officer, General
Counsel or Treasurer, to the Notice Holders, and the Managing Underwriters,
if any, to the effect of the foregoing and, upon receipt of such
certificate, each such Notice Holder's Selling Period will not commence or
shall be suspended until such Notice Holder's receipt of copies of the
supplemented or amended Prospectus provided for in Section 2(d)(i)(A)
hereof, or until it is advised in writing by the Company that the
Prospectus may be used, and it has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by
reference in such Prospectus. The Company will use reasonable efforts to
ensure that the use of the Prospectus may be resumed, and the Selling
Period will commence or recommence, as soon as practicable and, in the case
of a pending development or event referred to in Section 2(d)(ii)(B)
hereof, as soon as the earlier of (x) public disclosure of such pending
material corporate development or similar material event or (y) the date
upon which in the judgment of the Company, public disclosure of such
material corporate development or similar material event would not be
disadvantageous to the Company
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and/or its stockholders. Notwithstanding the foregoing, the Company shall
not under any circumstances be entitled to exercise its right under this
Section 2(d)(ii) to defer the commencement or recommencement of Selling
Periods more than one (1) time in any three (3) month period or two (2)
times in any twelve (12) month period, and each such period in which
Selling Periods are suspended shall not exceed thirty-five (35) days (a
"Deferral Period").
(e) The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if (i) the Initial Shelf Registration
has not been filed on or prior to the Filing Date, (ii) prior to the end of the
Effectiveness Period, the SEC shall have issued a stop order suspending the
effectiveness of the Shelf Registration, (iii) the aggregate number of days in
any one Deferral Period exceeds the periods permitted pursuant to Section
2(d)(ii) hereof or (iv) the number of Deferral Periods exceeds the number
permitted pursuant to Section 2(d)(ii) hereof (each of the events of a type
described in any of the foregoing clauses (i) through (iv) are individually
referred to herein as an "Event," and the Filing Date in the case of clause (i),
the date on which the effectiveness of the Shelf Registration has been suspended
or proceedings with respect to the Shelf Registration under Section 8(d) or 8(e)
of the Securities Act have been commenced in the case of clause (ii), the date
on which the duration of a Deferral Period exceeds the periods permitted by
Section 2(d)(ii) hereof in the case of clause (iii), and the date of the
commencement of a Deferral Period that causes the limit on the number of
Deferral Periods under Section 2(d)(ii) hereof to be exceeded in the case of
clause (iv), being referred to herein as an "Event Date"). Events shall be
deemed to continue until the "Event Termination," which shall be the following
dates with respect to the respective types of Events: the date the Initial
Registration Statement is filed in the case of an Event of the type described in
clause (i), the date that all stop orders suspending effectiveness of the Shelf
Registration have been removed, in the case of Events of the types described in
clause (ii), termination of the Deferral Period which caused the periods
permitted by Section 2(d)(ii) to be exceeded in the case of the commencement of
an Event of the type described in clause (iii), and termination of the Deferral
Period the commencement of which caused the number of Deferral Periods permitted
by Section 2(d)(ii) to be exceeded in the case of Events of the type described
in clause (iv).
Accordingly, upon the occurrence of any Event and until such time as
there are no Events which have occurred and are continuing (a "Damages Accrual
Period"), commencing on the Event Date on which such Damages Accrual Period
began, the Company agrees to pay, as liquidated damages, and not as a penalty,
an additional amount (the "Liquidated Damages Amount"): (A)(i) to each holder
of a Note that is a Notice Holder, accruing at a rate equal to one-half of one
percent per annum (50 basis points) on the aggregate principal amount at
maturity of Notes held by such Notice Holder and (ii) to each holder of Common
Stock that is a Notice Holder, accruing at a rate equal to one-half of one
percent per annum (50 basis points) calculated on an amount equal to the
aggregate principal
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amount at maturity of the Notes that were converted into such Common Stock; and
(B) if the Damages Accrual Period continues for in excess of thirty (30) days,
from and after the end of such thirty (30) day period until the end of the
applicable Damages Accrual Period, (i) to each holder of a Note (whether or not
a Notice Holder), accruing at a rate equal to one-half of one percent per annum
(50 basis points) on the aggregate principal amount at maturity of Notes held by
such holder and (ii) to each holder of Common Stock (whether or not a Notice
Holder), accruing at a rate equal to one-half of one percent per annum (50 basis
points) calculated on an amount equal to the aggregate principal amount at
maturity of the Notes that were converted into such Common Stock.
Notwithstanding the foregoing, no Liquidated Damages Amounts shall accrue under
clause (A) of the preceding sentence during any period for which Liquidated
Damages Amounts accrue under Clause (B) of the foregoing sentence or as to any
Registrable Securities from and after the earlier of (x) the date such
securities are no longer Registrable Securities, and (y) expiration of the
Effectiveness Period. The rate of accrual of the Liquidated Damages Amount with
respect to any period shall not exceed the rate provided for in this paragraph
notwithstanding the occurrence of multiple concurrent Events.
The Company shall pay the liquidated damages due on any Notes or
Common Stock by depositing with the Trustee under the Indenture (with respect to
payments to be made to holders of Notes) or with the Registrar of the Common
Stock (with respect to payments to be made to holders of Common Stock), in
trust, for the benefit of the holders of Notes or Common Stock or Notice
Holders, as the case may be, entitled thereto, at least one Business Day prior
to the applicable payment date, sums sufficient to pay the liquidated damages
accrued or accruing since the last preceding payment date through such payment
date. For these purposes, subject to the proviso set forth in the next
sentence, payment dates will be the same dates as the interest payment dates
with respect to the Notes under the Indenture. The Liquidated Damages Amount
due shall be payable to the holder of Notes or Common Stock entitled thereto on
such payment date to the holders of record thereof on the applicable record date
(corresponding to the record dates for interest payments on the Notes), provided
that accrued and unpaid Liquidated Damages Amounts shall be paid on the
applicable redemption date upon the redemption of any Note (to the extent
accrued with respect to such Note) and, in the event of redemption of all Notes,
shall also be paid on such redemption date to the holders of Common Stock (to
the extent accrued with respect to such Common Stock). The Trustee or Registrar
of Common Stock, as applicable, shall be entitled, on behalf of the holders of
the Notes, Common Stock and Notice Holders, to seek any available remedy for the
enforcement of this Agreement, including for the payment of such liquidated
damages. 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, in addition to the payment of the
Liquidated Damages Amount.
All of the Company's obligations set forth in this Section 2(e) which
are outstanding with respect to any Registrable Securities at the time such
security ceases to be a
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Registrable Security shall survive until such time as all such obligations with
respect to such security have been satisfied in full (notwithstanding
termination of this Agreement pursuant to Section 8(o)).
The parties hereto agree that the liquidated damages provided for in
this Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by holders of Registrable Securities by reason of the failure of the
Shelf Registration to be filed or declared effective or unavailable (absolutely
or as a practical matter) for effecting resales of Registrable Securities, as
the case may be, in accordance with the provisions hereof.
3. Registration Procedures. In connection with the Company's
registration obligations under Section 2 hereof, the Company shall effect such
registration to permit the sale of the Registrable Securities, and pursuant
thereto the Company shall as expeditiously as possible:
(a) As described in Section 2(a), prepare and file with the SEC a
Registration Statement or Registration Statements on any appropriate form
under the Securities Act available for the sale of the Registrable
Securities by the Holders thereof, and use reasonable efforts to cause each
such Registration Statement to become effective and remain effective as
provided herein; provided that before filing any such Registration
Statement or Prospectus or any amendments or supplements thereto (other
than documents that would be incorporated or deemed to be incorporated
therein by reference and that the Company is required by applicable
securities laws or stock exchange requirements to file) the Company shall
furnish to the Placement Agents and the Managing Underwriters of such
offering, if any, copies of all such documents proposed to be filed, and
the Company shall not file any such Registration Statement or amendment
thereto or any Prospectus or any supplement thereto (other than such
documents which, upon filing, would be incorporated or deemed to be
incorporated by reference therein and that the Company is required by
applicable securities laws or stock exchange requirements to file) to which
the Holders of a majority of the Registrable Securities covered by such
Registration Statement, the Placement Agents, any Managing Underwriters or
their counsel shall reasonably object in writing within two full Business
Days of receipt thereof; provided that the party or parties objecting shall
have furnished to the Company with such objection a written description of
such objection and reasonable legal grounds therefor.
(b) Subject to Section 3(a), prepare and file with the SEC such
amendments and post-effective amendments to each Registration Statement as
may be necessary to keep such Registration Statement continuously effective
throughout the Effectiveness Period; 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)
under the Securities Act; and comply with the provisions of
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the Securities Act with respect to the disposition of all securities
covered by such Registration Statement and Prospectus.
(c) Notify the selling Holders, the Placement Agents, and the Managing
Underwriters, if any, promptly, and (if requested by any such person)
confirm such notice in writing, (i) when a Prospectus, any Prospectus
supplement, a Registration Statement or a post-effective amendment to a
Registration Statement has been filed with the SEC, and, with respect to a
Registration Statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the SEC or any other federal or
state governmental authority for amendments or supplements to a
Registration Statement or related Prospectus or for additional information,
(iii) of the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation or threatening of any proceedings for that
purpose, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from
qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the existence of any fact or happening of any event which
makes any statement of a material fact in such Registration Statement or
related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue or which would require the making
of any changes in the Registration Statement or Prospectus in order that,
in the case of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and that in the case of the Prospectus, it will not contain any
untrue statement of a material fact or omit to state any 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, and (vi) of the Company's
determination that a post-effective amendment to a Registration Statement
would be appropriate.
(d) Use reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the lifting of
any suspension of the qualification (or exemption from qualification) of
any of the Registrable Securities for sale in any jurisdiction, at the
earliest possible moment.
(e) If reasonably requested by the Placement Agents or the Managing
Underwriters, if any, or the Holders of a majority of the Registrable
Securities being sold, (i) promptly incorporate in a Prospectus supplement
or post-effective amendment to a Registration Statement such information as
the Placement Agents or their counsel, the Managing Underwriters, if any,
or their counsel or such Holders, in connection with any offering of
Registrable Securities, believe should be included therein as required by
applicable law, provided that the party or parties making such a
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request shall have furnished to the Company with such request a written
description of such request and reasonable legal grounds therefor, and (ii)
make all required filings of such Prospectus supplement or such post-
effective amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment; provided that the Company shall not
be required to take any actions under this Section 3(e) that are not, in
the reasonable opinion of counsel for the Company, in compliance with
applicable law.
(f) Furnish to each Notice Holder, and the Placement Agents and their
counsel, and each Managing Underwriter, if any, and their counsel without
charge, at least one conformed copy of the Registration Statement or
Statements and any amendment thereto, including financial statements but
excluding schedules, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits (unless requested in
writing by such holder, counsel, Placement Agents or underwriter).
(g) Deliver to each Notice Holder, and the Placement Agents and their
counsel and each Managing Underwriter, if any, and their counsel in
connection with any offering of Registrable Securities, without charge, as
many copies of the Prospectus or Prospectuses relating to such Registrable
Securities (including each preliminary prospectus) and any amendment or
supplement thereto as such persons may reasonably request (such request to
include the address and other information to which such documents are to be
delivered); and the Company hereby consents to the use of such Prospectus
or each amendment or supplement thereto by each of the Notice Holders and
the Underwriters, if any, in connection with any offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or
supplement thereto.
(h) Solely to facilitate the resale of Registrable Securities under a
Registration Statement, prior to any public offering of Registrable
Securities, to register or qualify such Registrable Securities for offer
and sale under the securities or Blue Sky laws of the states of the United
States; keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of
the Registrable Securities covered by the applicable Registration
Statement; provided, that the Company shall not be required to (A) qualify
as a foreign corporation or as a dealer in securities in any jurisdiction
where it would not otherwise be required to qualify but for this Section
3(h), (B) file any general consent to service of process or (C) subject
itself to taxation in any such jurisdiction if it is not so subject.
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(i) Solely to facilitate the resale of Registrable Securities under a
Registration Statement, cause the Registrable Securities covered by the
applicable Registration Statement to be registered with or approved by such
other governmental agencies or authorities within the United States, except
as may be required solely as a consequence of the nature of such selling
Holder, in which case the Company will cooperate in all reasonable respects
with the filing of such Registration Statement and the granting of such
approvals, as may be necessary to enable the selling Holder or Holders
thereof or the Managing Underwriters, if any, to consummate the disposition
of such Registrable Securities.
(j) During any Selling Period (other than during a Deferral Period),
immediately upon the existence of any fact or the occurrence of any event
as a result of which a 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 a 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, promptly prepare
and file (subject to the proviso in Section 3(a)) a post-effective
amendment to each Registration Statement or a supplement to the related
Prospectus or any document incorporated therein by reference or file any
other required document (such as a Current Report on Form 8-K) that would
be incorporated by reference into the Registration Statement so that the
Registration Statement shall 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 so that the
Prospectus will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein, in 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 a Registration Statement, use reasonable
efforts to cause it to become effective as soon as practicable.
(k) Enter into such agreements (including, in the event of an
Underwritten Offering, an underwriting agreement in form, scope and
substance as is customary in underwritten offerings) and take all such
other reasonably necessary actions in connection therewith (including, in
the event of an underwritten offering, those reasonably requested by the
Managing Underwriters, if any, or the Holders of a majority of the
Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection, whether
or not an underwriting agreement is entered into, and if the registration
is an underwritten registration, (i) make such representations and
warranties to the Holders of such Registrable Securities and the
underwriters with respect to the business of the
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Company and its subsidiaries, the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by reference, if
any, in each case, in form, substance and scope as are customarily made by
issuers similar to the Company to underwriters in underwritten offerings
and confirm the same if and when requested; (ii) use reasonable efforts to
obtain opinions of counsel to the Company and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters and their counsel and the Holders
of a majority of the Registrable Securities being sold) addressed to each
of the underwriters or, if there are no underwriters, to the selling
holders covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such Managing Underwriters and their counsel or the selling
holders, as the case may be; (iii) use reasonable efforts to obtain "cold
comfort" letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other certified public
accountants of any subsidiary of the Company or any business acquired or to
be acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Registration Statement),
addressed to the selling Holders as a group and each of the Managing
Underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings; and (iv) deliver such documents and certificates as
may be reasonably requested by the holders of a majority of the Registrable
Securities being sold, the Managing Underwriters and their counsel to
evidence the continued validity of the representations and warranties of
the Company and its subsidiaries made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in the
underwriting agreement entered into by the Company. The form, scope and
substance of the underwriting agreement entered into by the Company in
connection with its public offering of common stock in December 1994 are
deemed reasonable for purposes of this Section. The above shall be done at
each closing under such underwriting or similar agreement as and to the
extent required thereunder.
(l) If requested in connection with a disposition of Registrable
Securities pursuant to a Registration Statement, make available for
inspection, during regular business hours and after reasonable advance
notice, by a representative of the Holders of Registrable Securities being
sold, any Managing Underwriter participating in any disposition of
Registrable Securities, if any, and any attorney or accountant retained by
such selling holders or underwriter, financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries as
reasonably requested, and cause the executive officers, directors and
employees of the Company and its subsidiaries to supply all information
reasonably requested by any such representative, Managing Underwriter,
attorney or accountant in connection with such disposition; subject to
reasonable assurances by each such person that such
14
information will only be used in connection with matters relating to such
Registration Statement.
(m) Comply with all applicable rules and regulations of the SEC and
make generally available to its security holders earning statements (which
need not be audited) satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated
under the Securities Act) no later than 45 days after the end of any 12-
month period (or 90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm commitment
or best efforts underwritten offering, and (ii) if not sold to underwriters
in such an offering, commencing on the first day of the first fiscal
quarter of the Company commencing after the effective date of a
Registration Statement, which statements shall cover said 12-month periods.
(n) Cooperate with the selling holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends;
and enable such Registrable Securities to be in such denominations and
registered in such names as the holders may request.
(o) Provide a CUSIP number for all Registrable Securities not later
than the effective date of the Registration Statement and provide the
Trustee under the Indenture and the transfer agent for the Common Stock
with printed certificates for the Registrable Securities which are in a
form eligible for deposit with The Depository Trust Company.
(p) Cause all Registrable Securities covered by the Registration
Statement to be listed on the New York Stock Exchange and each securities
exchange or quotation system on which the Company's Common Stock is then
listed no later than the date the Registration Statement is declared
effective.
(q) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc.
4. Holder's Obligations. Each Holder agrees, by acquisition of the
Notes and Registrable Securities, that no Holder of Registrable Securities shall
be entitled to sell any of such Registrable Securities pursuant to a
Registration Statement or to receive a Prospectus relating thereto, unless such
Holder has furnished the Company with the notice required pursuant to Section
2(d) hereof and, promptly after the Company's request, such other information
regarding such Holder and the distribution of such Registrable Securities as may
be required to be included in the Registration or the Prospectus or the Company
may
15
from time to time reasonably request. The Company may exclude from such
registration the Registrable Securities of any Holder who does not furnish such
information provided above for so long as such information is not so furnished.
Each Holder of Registrable Securities as to which any Registration Statement is
being effected agrees promptly to furnish to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not misleading. Any sale of any Registrable
Securities by any Holder shall constitute a representation and warranty by such
Holder that the information relating to such Holder and its plan of distribution
is as set forth in the Prospectus delivered by such Holder in connection with
such disposition, that such Prospectus does not as of the time of such sale
contain any untrue statement of a material fact relating to such Holder or its
plan of distribution and that such Prospectus does not as of the time of such
sale omit to state any material fact relating to such Holder or its plan of
distribution necessary to make the statements in such Prospectus, in light of
the circumstances under which they were made, not misleading.
5. Registration Expenses. All fees and expenses incident to the
Company's performance of or compliance with this Agreement shall be borne by the
Company whether or not any of the Registration Statements become effective.
Such fees and expenses shall include, without limitation, (i) all registration
and filing fees (including, without limitation, fees and expenses (x) with
respect to filings required to be made with the SEC, the National Association of
Securities Dealers, Inc. and any securities exchange on which the Company's
Common Stock is then listed and (y) relating to compliance with federal
securities or Blue Sky laws (including, without limitation, fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Securities under the laws of such jurisdiction as may be required
under Section 3(h) hereof)), (ii) all expenses incurred in connection with the
preparation, word processing, printing and distribution of any Registration
Statement, any Prospectus, any amendments or supplements thereto, any
underwriting agreements, certificates for Registrable Securities in a form
eligible for deposit with The Depository Trust Company, securities sales
agreements and other documents relating to the performance of and compliance
with this Agreement, (iii) the reasonable fees and disbursements of the Trustee
and its counsel and of the registrar and transfer agent for the Common Stock,
(iv) messenger, telephone and delivery expenses relating to the performance of
the Company's obligations hereunder, (v) fees and disbursements of counsel for
the Company and the reasonable fees and disbursements of counsel for the Holders
in connection with the Shelf Registration (provided, that the Company shall not
be liable for the fees and expenses of more than one separate firm for all
parties participating in any transaction hereunder), (vi) fees and disbursements
of all independent certified public accountants referred to in Section 3(k)(iii)
hereof (including the expenses of any special audit and "cold comfort" letters
required by or incident to such performance) and (vii) Securities Act liability
insurance obtained by the Company in its sole discretion. In addition, the
Company shall pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of
16
any annual audit, the fees and expenses incurred in connection with the listing
of the securities to be registered on any securities exchange on which similar
securities issued by the Company are then listed and the fees and expenses of
any person, including special experts, retained by the Company. Notwithstanding
the provisions of this Section 5, each seller of Registrable Securities shall
pay all selling expenses and all registration expenses, to the extent that the
Company is prohibited by applicable Blue Sky laws from paying for such expenses
or on behalf of such seller of Registrable Securities.
6. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless the Placement
Agents, each Holder and each person, if any, who controls the Placement Agents
or any Holder within the meaning of either Section 15 of the Securities Act or
Section 20(a) of the Exchange Act, or is under common control with, or is
controlled by, the Placement Agents or any Holder, from and against all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred by the Placement Agents, any Holder or any
such controlling or affiliated person in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) pursuant to which Registrable Securities
were registered under the Securities Act, including all documents incorporated
therein by reference, 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 not misleading, or caused by any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus (as amended or
supplemented), or caused by any omission or alleged omission to state therein a
material fact 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 or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to the Placement Agents or any Holder furnished to the Company in
writing by the Placement Agents or any selling Holder expressly for use therein
or by such Holder's failure to deliver a copy of the Prospectus or any
amendments or supplements thereto after the Company has furnished such Holder
with a sufficient number of copies of the same.
(b) Each Holder agrees, and such agreement shall be evidenced by the
Holder delivering to the Company the notice described in Section 2(d) hereof,
severally and not jointly, to indemnify and hold harmless the Company, the
Placement Agents and the other selling Holders, and each of their respective
directors, officers who sign the Registration Statement and each person, if any,
who controls the Company, the Placement Agents and any other selling Holder
within the meaning of either Section 15 of the Securities Act or Section 20(a)
of the Exchange Act to the same extent as the foregoing indemnity from the
Company to the Placement Agents and the Holders, but only with reference to
17
information relating to such Holder furnished to the Company in writing by such
Holder expressly for use in any Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto) or by or on
behalf of such Holder's failure to deliver a copy of the Prospectus or any
amendments or supplements thereto after the Company has furnished such Holder
with a sufficient number of copies of the same.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or paragraph (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for (a) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Placement Agents and all
persons, if any, who control the Placement Agents within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, (b) the fees
and expenses of more than one separate firm (in addition to any local counsel)
for the Company, its directors, its officers who sign the Registration Statement
and each person, if any, who controls the Company within the meaning of either
such Section and (c) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Holders and all persons, if any, who
control any Holders within the meaning of either such Section, and that all such
fees and expenses shall be reimbursed as they are incurred. In such case
involving the Placement Agents and persons who control the Placement Agents,
such firm shall be designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated.
In such case involving the Holders and such persons who control Holders, such
firm shall be designated in writing by the holders of the majority of
Registrable Securities sold pursuant to the Registration Statement. In all
other cases, such firm shall be designated by the Company. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent but, if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of
18
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party for such fees and expenses of counsel in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which such
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or paragraph
(b) of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party or
parties on the other hand from the distribution of Registrable Securities
pursuant to a Registration Statement 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 indemnifying party or parties on the
one hand and of the indemnified party or parties on the other hand in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the total net
proceeds from the initial placement (before deducting expenses) of the Notes
pursuant to the Placement Agreement. Benefits received by the Placement Agents
shall be deemed to be equal to the total purchase discounts and commissions
received by them pursuant to the Placement Agreement and benefits received by
any other Holders shall be deemed to be equal to the value of having the sale of
shares of Common Stock by such Holders registered under the Securities Act and
Blue Sky laws. Benefits received by any underwriter shall be deemed to be equal
to the total underwriting discounts and commissions, as set forth on the cover
page of the Prospectus forming a part of the Registration Statement which
resulted in such losses. The relative fault of the Company and the Holders
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 information supplied by the Company or by
the Holders and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Holders'
respective obligations to contribute pursuant to this Section 6(d) are several
in proportion to the respective number of Registrable Securities of such Holder
that were registered pursuant to a Registration Statement, and not joint.
19
(e) The Company and each Holder agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above 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
Section 6, no Holder shall be required to indemnify or contribute any amount in
excess of the amount by which the total price at which Registrable Securities
were sold by such Holder exceeds the amount of any damages that such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 6
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Placement Agents, any Holder or any person controlling the Placement Agents
or any Holder, or by or on behalf of the Company, its officers or directors or
any person controlling the Company, (iii) acceptance of any of the Registrable
Securities and (iv) any sale of Registrable Securities pursuant to a
Registration Statement.
The indemnity, contribution and expense reimbursement obligations of
the Company hereunder shall be in addition to any liability the Company may
otherwise have hereunder, under the Placement Agreement or otherwise. The
provisions of this Section 6 shall survive so long as Registrable Securities
remain outstanding, notwithstanding any transfer of the Registrable Securities
by any holder or any termination of this Agreement.
7. Information Requirements.
------------------------
(a) The Company shall file the reports required to be filed by it
under the Securities Act and the Exchange Act, and if at any time the Company is
not required to file such reports, it will, upon the request of any holder of
Registrable Securities, make publicly available other information so long as
necessary to permit sales pursuant to Rule 144 and Rule 144A under the
Securities Act. Upon the request of any holder of Registrable Securities, the
Company shall deliver to such holder a written statement as to whether it has
complied with such filing requirements. The Company further covenants that it
will cooperate with any holder of Registrable Securities and take such further
reasonable action as any holder of Registrable Securities may reasonably request
(including, without limitation,
20
making such reasonable representations as any such holder may reasonably
request), all to the extent required from time to time to enable such holder to
sell Registrable Securities pursuant to Rule 144 or Rule 144A under the
Securities Act. Notwithstanding the foregoing, nothing in this Section 7 shall
be deemed to require the Company to register any of its securities under any
section of the Exchange Act.
(b) The Company shall file the reports required to be filed by it
under the Exchange Act and shall comply with all other requirements set forth in
the instructions to Form S-3 in order to allow the Company to continue to be
eligible to file registration statements on Form S-3 during the Effectiveness
Period.
8. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of its
obligations under this Agreement, each holder of Registrable Securities, in
addition to being entitled to exercise all rights 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 any
of the provisions of this Agreement and hereby further agrees 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.
(b) No Conflicting Agreements. The Company has not, as of the date
hereof, and shall not, on or after the date of this Agreement, enter into any
agreement with respect to its securities which conflicts with the rights granted
to the holders of Registrable Securities in this Agreement. The Company
represents and warrants that the rights granted to the holders of Registrable
Securities hereunder do not in any way conflict with the rights granted to the
holders of the Company's securities under any other agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of holders
of a majority of the then outstanding Common Stock constituting Registrable
Securities (with holders of Notes deemed to be the holders, for purposes of this
Section, of the number of outstanding shares of Common Stock into which such
Notes are convertible). Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of holders of Registrable Securities whose securities
are being sold pursuant to a Registration Statement and that does not directly
or indirectly affect the rights of other holders of Registrable Securities may
be given by holders of at least a majority of the Registrable Securities being
sold by such holders; provided that the provisions of this
21
sentence may not be amended, modified, or supplemented except in accordance with
the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, telecopier, or any courier guaranteeing overnight delivery
(i) if to a Holder, at the most current address given by such Holder to the
Company by means of a written notice given in accordance with the provisions of
this Section 8(d), which address initially is, with respect to the Placement
Agents, the address set forth in the Placement Agreement; and (ii) if to the
Company, initially at the Company's address set forth in the Placement Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 8(d).
All such notices and communications shall be deemed to have been duly
given at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Trustee and the
Registrar for the Common Stock.
Each Managing Underwriter shall provide notice to the Company of its
service in such capacity and such notice shall contain information as to where
communications to such Managing Underwriter should be directed.
(e) Approval of Holders. Whenever the consent or approval of holders
of a specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its Affiliates (other than the
Placement Agents or subsequent holders of Registrable Securities if such
subsequent holders are deemed to be such Affiliates solely by reason of their
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the holders of such required
percentage.
(f) Successors and Assigns. Any person who purchases any Registerable
Securities shall be deemed, for purposes of this Agreement, to be an assignee of
such Placement Agent. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties and shall inure
to the benefit of and be binding upon each holder of any Registrable Securities.
22
(g) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made in this Agreement and each of the Holders
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights.
(h) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be original and all of which taken together
shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
(k) Severability. If any term, provision, covenant or restriction of
this Agreement is held 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 thereby, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such which may be hereafter declared
invalid, illegal, void or unenforceable.
(l) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is 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 and the registration rights
granted by the Company with respect to the Common Stock of the Company into
which Notes are convertible. Except as provided or disclosed in the Placement
Agreement, including the exhibits and schedules thereto, 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 Common Stock of the Company into which the Notes are
convertible. This Agreement supersedes all prior agreements and understandings
among the parties with respect to such registration rights.
(m) Attorneys' Fees. In any action or proceeding brought to enforce
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the prevailing party, as determined by the court, shall be
entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
23
(n) Further Assurances. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things reasonably necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and the other
documents contemplated hereby and consummate and make effective the transactions
contemplated hereby.
(o) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Sections 4, 5 or 6 hereof and the
obligations to make payments of and provide for liquidated damages under Section
2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
their terms.
24
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EXIDE CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Name:
Title:
Accepted as of the date first
above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By:______________________________
Name:
Title:
SALOMON BROTHERS INC
By:______________________________
Name:
Title:
BT SECURITIES CORPORATION
By:______________________________
Name:
Title:
24
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EXIDE CORPORATION
By:_________________________________________
Name:
Title:
Accepted as of the date first
above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /S/ XXXX XXXXX
______________________________
Name: Xxxx Xxxxx
Title: Managing Director
SALOMON BROTHERS INC
By:______________________________
Name:
Title:
BT SECURITIES CORPORATION
By:______________________________
Name:
Title:
24
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EXIDE CORPORATION
By:_________________________________________
Name:
Title:
Accepted as of the date first
above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By:______________________________
Name:
Title:
SALOMON BROTHERS INC
By: /S/ XXXXX XXXXXXXX
------------------------------
Name: Xxxxx Xxxxxxxx
Title: Associate
BT SECURITIES CORPORATION
By:______________________________
Name:
Title:
24
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EXIDE CORPORATION
By:_________________________________________
Name:
Title:
Accepted as of the date first
above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By:______________________________
Name:
Title:
SALOMON BROTHERS INC
By:______________________________
Name:
Title:
BT SECURITIES CORPORATION
By: /S/ Xxxx X. Xxx
______________________________
Name: Xxxx X. Xxx
Title: Managing Director
